dismissed EB-1C Case: Glass Products

(b)(6)
T -i 
DATE: MAR .0·4· 2013 
INRE: Petitioner: 
Beneficia ·ry: 
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 
OFFICE: NEBRASKA SERVICE CENTER 
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. § ll53(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 b~lieve the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630.The 
specific requirements for filing such a motion can 'be found at 8 C.F.R. § 103.5. Do not tile a~y motion 
directly with the AAO. Please be aware that8 C.F.R. § 103.5(a)( I )(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
~· .. · 
'-IL:Ron Rosenberg 
f' . Acting Chief, Administrative Appeals Offtce 
www.uscis.gov 
(b)(6)
Page 2. 
DISCUSSION: The Director, Nebraska Service Center denied the · preference visa petition . and 
dismissed th~ petitioner's subsequent motion to reopen. The matter is now before the 
Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
. -
The petitioner is a Delaware corporation that seeks to employ the beneficiary as a technical 
service engineer. 1 · Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrrui.t pursuant to section 203(b)(l)(C) of the Immigration and 
Nationality Act{th~ Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition concluding ·that the petitioner did not establish: ( 1) that the 
petitioner's foreign affiliate employed the beneficiary in .a qualifying ·managerial or executive 
capacity; or (2) that the petitioner would employ the beneficiary in a qualifying managerial or 
executive capacity. The director subsequently dismissed the petitioner's motion to. reopen, 
. . I 
concluding that the petitim'ler failed to meet the requirements of a motion at 8 C.F.R. 
§ 103.5(a)(3). · 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a moti~n 
and forwarded the appeal to the AAO. On appeal, counsel for the petitioner s_ubmits a brief and 
·additional evidence asserting that the director's decision was in error. 
L TheLaw 
Section 203(b) of the Act states, in pertinent prut: 
(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 preced1ng -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 employeror to a 
subsidiary or affiliate thereof in a c~pacity that is managerial or executive. 
The language of the statute is speCific in limiting this provision to only those _executives or 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate 
1 The petitioner identified the beneficiary's V :S. position as "technical service engineer" on the Form I-
140, Immigrant Petition for Alien Worker, and in a flow chart submitted at the time of filing . There are 
numerous references to the position as "technical service manager" in the record and the petitioner asserts 
that the position was misstated on the Form 1-140. 
(b)(6)
Page 3 
or subsidiary of that entity, and 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 ce1tification 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 l01(a)(44)(A) of the Act, 8 U.S.C. § 110l(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 depattment 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. 
Section 10l(a)(44)(B) of the Act, 8 U.S.C. § 110l(a)(44)(B), defines the term "executive 
capacity" as 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. 
(b)(6)
Page4 
II. Employment Abroad in a Managerial or Executive Capacity 
The first issue· to be. addressed is whether the petitioner established that the beneficiary was 
employed by · its foreign affiliate in a qualifying managerial or executive capacity prior to his 
admission to the United States. 
The petitioner filed the immigrant visa petition on January 5, 2011. The petitioner is a 
corporation engaged in the distribution, marketing and sale of glass products. The petitioner 
stated that the corporation was· established in 1979, has a gross income of $300 million and 
cunently has more than 90 employees. 
In a letter dated November 22, 2010, the petitioner stated that the beneficiary served in the 
position of Technical Service Engineer from March 2005 to May 2006, where he had "the vital 
responsibility to develop and direct the company's technical service engineering functions 
completely 
with an approximate direct and indirect annual value of $10 million." The petitioner 
further described the beneficiary's duties as the following: 
Managing and directing quality control· logistics,· materials planning, and 
packaging for the proper response and resolution to serve the company, its 
affiliates and customers as the only technical service engineer at the company's 
plant in Mexico D.F., Mexico; Liaising with clients' senior management and 
engineers within and outside the company to meet clients' needs; Liaising with 2 
plus university degreed engineers to maximize production and minimize costs; 
Supervising and directing the perfom1ance evaluations of the company's products 
at the ·customers' plants, Making recommendations for changes in the company's 
products and to implement field problem resolution actions; Managing, directing 
and coordinating 2 quality supervisors activities to maximize the utilization of 
resources for product and services improvement initiatives and problem 
resolution; and Executing the company's policies to analyze our clients' needs to 
deliver its products in accordance With clients' specifications ·and ,to minimize 
production problems in assembly plants. 
Additionally, his duties included the following:. Making recommendations to 
achieve cost reductions to support continuous improvement of products; 
Managing and directing the resolution of shipping, packaging and handling issues 
concerning the company's products; Managing and directing quality control for 
technical service engineering functions, and trouble shooting problems delegating 
tasks and other usual managerial duties. In general, [the beneficiary] managed 
and directed the company's technical service engineering functions and had 
discretionary authority over such day to day operations. 
On July 22, 2011, the director issued a Request for Evidence ("RFE") in which he instructed the 
petitioner to submit: (1) a more specific description of the beneficiary's duties abroad which 
identifies the actual daily tasks performed and an estimate of how much time the beneficiary 
spent performing each tasks on a day-to-day basis; (2) an organizational chart depicting the 
(b)(6)
Page 5 
operational structure of the foreign employer at the time the beneficiary worked for the company; 
(3) names, titles, qualifications and job duties for the beneficiary's immediate subordinates and 
director supervisor abroad; and (4) any additional evidence that clearly identifies the individuals 
who performed non-qualifying tasks associated with the "technical service engineering" function 
and a description of their duties. 
In a letter dated October 12, 2011, the petitioner provided the following description of the 
foreign technical service engineer position: 
c 
40% Liaising with clients' senior management and engineers within and outside 
the company t<? meet clients' needs; 
15% Supet·vising and . directing the performance evaluations of the [the 
petitioner's] glass products at the customers' plants, Making recommendations for 
changes. in [the petitioner;s]. glass products and to implement field problem 
resolution actions; · 
15% Managing, directing, and coordinating quality supervisors actiVIties to 
·maximize the utilization of resources for product and services improvement 
initiatives and problem resolution; and Executing the Company's policies to 
analyze our clients' needs to deliver its· products in accordance With clients' 
specifications and to minimize production problems in assembly plants. 
15% Managing and directing the resolution of shipping, packaging and 
handling issues concerning the company's products; Making recommendations to 
achieve cost reductions to support continuous improvement of products; 
15% Managing and directing quality control for technical service engineering 
functions, and trouble shooting [sic] problems delegating tasks and other usual 
managerial duties. · 
The petitioner submitted ari .un-translated organizational chrut for its Mexican affiliate which 
depicts the beneficiary as one of seven empl()yees with the job title "S.T.C." all of which 
reported to a person with the title "GTE. S.T.C. NACL." The beneficiary's s~pervisor reported to 
a product quality manager (gerente de calidad de producto). 
The petitioner stated in its letter that the beneficiary repmted to a technical service manager . and. 
had no subordinates. However, the petitioner clarified that he "managed essenti(!.l functions" at 
its Mexican affiliate's plants and "functioned at a senior level Within the organizational hierarchy 
and exercised full discretionary authority." Specifically, _the petitioner stated that the beneficiary 
managed the following functions: (1) oversaw quality control and service engineering; (2) led 
the liaison activities between the company's manufacturing plant and clients to meet clients' 
needs; (3) directed performance evaluations and developed and directed policies to execute the 
company's service.readiness plan; and (4) directed resolution of shipping, handling, packaging, 
and inventory issues. 
(b)(6)·-
Page 6 
The petitioner's response to the RFE also included the company's official position description for 
the position of Technical Services Engineer within the Mexican affiliate. The description is 
dated November 2005 and bears the name of the beneficiary and his supervisor. According to. 
this description,' the purpose of the position is to "investigate quality related ·issues with. the 
customer, sales, and manufacturing plarit to resolve problems in the most efficient manner." 
_The specific "main responsibilities" of the position included the following "operational duties": 
• Attend all quality product claims of our customers according to the established 
procedure. ; 
• Provide a pro-active service in order to anticipate customer needs. 
• Assist and give technical support. in test runs, first runs in plants and with .the 
custoiner. 
• Providing a pro-active service to link the external customer and the manufacturing 
plant .... 
• Detect opportunity areas to improve the glass container functionality in a 
customer's line and manufacturing plants as well. 
• Audit inventories when necessary. 
• Monitor quality held inventory. 
• Monitor re:.select/repack crews and oversee them [sic] work when necessary. 
• Enter and maintain information in the IBM AS-400 software. 
• Develop activities assigned by supervisor .... 
The job description also included the following "strategic" duties: 
• Maintain a good service level with internal and external customers. 
• Provide information to allow the good understanding between the customer and 
the other areas of the organization. 
• Comply with the ISO 9001 standard. 
• Observe competitor's bottle, cartons, and -palletizing for ideas to improve our ­
package. 
Finally, the official position description identifies the following "key decisions for which the 
position is responsible": 
• Determine if a customer's complaint is justified . 
• Determine disposition of non-conforming products. 
• Determine placement of hold on all inventory outside of a customer's 
specifications . 
• Define and clarify quality ranges. 
• Make visits to customer's facility. 
• Verify corrective 
and preventive actions as a result of a non-conformity. 
• Determine if ware needs to be returned to customer. 
(b)(6)
Page7 
The job description indicates that the position of technical service engineer has no direct reports 
and no budgetary authority. The stated requirements for the position include three years of 
experience in a glass manufacturing plant, knowledge of quality specifications, sampling 
methods and filling processes for glass contains and skills with laboratory instruments for 
physical tests of glass containers, as well as diagnostic skills in field performance problems. 
The director denied the petitiqn on November 29, 20 U, concluding that the petitioner failed to 
establish that the foreign entity employed the beneficiary in a managerial capacity. In denying 
the petition, the director emphasized that there were material inconsistencies between the 
petitioner's nanative description of the beneficiary's duties and the foreign employer's official 
position. description for the technical service engineer position. The director noted that the 
petitioner's description of the position was overly vague and noted that it failed to provide 
additional · information regarding the beneficiary's specific duties in response to the RFE. 
Further, the director found that, based on the position's official description, the responsibilities of 
the technical service engineer position were primarily non-qualifying in nature and involved 
customer and product support. The director dismissed the petitioner's subsequent motion to 
reconsider on March 12, 2012 and did not disturb the original decision. 
On appeal, the petitioner reiterates its position that the beneficiary was petforming duties as a 
functional manager while serving as Technical Service Engineer for just over one year before his 
transfer to the United States. · 
Upon review, the petitioner's assertions are unpersuasive. The evidence of record does not 
·establish that the foreign entity employed the beneficiary in a primarily managerial or executive 
capacity. 
In examining the executive or managerial capacity of the beneficiary, the service will look first 
to the petitioner's description of the job duties. See 8 C.F.R. 204.5(j)(5). 
Here, while the petitioner maintains that the foreign entity employed the beneficiary as a 
function manager, the petitioner has submitted two completely different descriptions for his 
former position. The petitioner 
indicated in its narrative statements that the beneficiary allocated 
60 percent of his time to "supervising" "managing," and "directing" engineering, quality control, 
logistics and other fllilctions; however, it submitted an official company position description 
which indicates that the technical service engineer performs no duties that could be classified as 
managerial or executive under section 101(a)(44) of the Act. It is incumbent upon the petitioner 
to resolve any inconsistencies in the record by independent obje~tive 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). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. /d. at 591. 
Although the director explicitly remarked on this material discrepancy, the petitioner has failed 
to submit any explanation or clarification as to the true nature of the beneficiary's duties. The 
(b)(6)
Page 8 
AAO cannot reconcile the petitioner's claims that the beneficiary managed all technical service 
engineering functions ~ith a position description that indicates that the position was primarily 
charged with providing technical service and products support .. with limited decision-making 
authority. Duties requiring regular and ongoing contact with the customer such as reviewing 
customer's complaints, visiting customer facilities, and directly monitoring products, 
specification compliance and· problem resolution do not reflect the role of a function manager. 
Further, the AAO finds the official company description, which is . more detailed, specific and 
prepared contemporaneously with the beneficiary's employment abroad, to hold greater probative 
value in assessing the true. nature of the bene~iciary's prior position. 
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) . . 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 in managing the 
essential function, 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. See 8 C.F.R. § 204.5(j)(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 "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 lnt'l., 19 I&N Dec. 593,604 (Comm. 1988). 
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential 
function. As discussed above, the petitioner's claims that the beneficiary managed an essential 
function at the foreign entity are undermined by the petitioner's submission of a job description 
which clearly indicates that the beneficiary actually performed the technical services function, 
rather than managing it. 
While the petitioner submits an expert opinion letter to refute the direCtor's adverse finding that 
the petitioner's narrative position description · of the beneficiary's "function manager" role was 
vague, the opinion letter fails to acknowledge the"official" position description of the technical 
service engineer position, which clearly indicates that the beneficiary's position abroad involved 
primarily non-qualifying technical support duties. Since the inconsistency between the two job 
descriptions was one of the stated reasons for denial, and has not been clarified, the petitioner has 
not overcome the reasons for denial. The AAO may, in its discretion, use as advisory opinion 
. statements submitted as expert testimony. However, where an . opinion is not in accord with 
other information or is in any way questionable, the AAO is not required to accept or may give 
less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). 
Since the opinion Offered here was not ~ased on a complete review of the record as it pertained 
to the beneficiary's foreign employment, the opinion is .not found to be persuasive. 
(b)(6)Page9 
For the foregoing reasons, the petitioner has not established that the foreign entity employed the 
beneficiary in a primarily managerial or executive capacity. Accordingly, the appeal will be 
dismissed. . . . 
III. Employment in the U.S. in a Managerial or Executive Capacity 
The remaining issue to be addressed is whether the petitioner established that it will employ the 
beneficiary in a qualifying managerial or executive capacity. 
The petitioner submitted a letter dated November 22, 2010 signed by its vice president of finance 
and administration. The letter stated that the beneficiary had been employed by the petitioner in 
his current role since April 2010 and "he will have the .vital responsibility to manage and direct 
key functions in our US operations, namely manage and direct quality control logistics, materials 
planning, and packaging for the proper response and resolution to serve our customers, the . . 
Company and our affiliates." His duties would include the following: 
Discretionary authority to negotiate key contractual provisions with an economic 
impact of $100,000 to $1 million per contract for the return of glass products, pre­
and post- order product changes which are related to glass manufacturing 
processes; Liaising ·with two (2) university degreed plant engineers with the 
Company's affiliates in Mexico to reach quality standards, maximize operational 
efficiency; and reach ' goals for quality assurance to minimize returns and reduce 
costs; Liaising with clients' senior management and engineers [operations 
directors or quality directors] to meet the needs of our clients including 
Liaising with the Company's president 
concerning contact negotiations to target clients' needs and win contracts; 
Managing and directing special projects including the implementation of quality 
systems to meet client requirements; and Evaluating requirements of clients for 
glass products to the [sic) determine the goals, metrics, and strategy. 
Additionally his duties will include the following: Liaising with Company clients 
and [company] manufacturing plants in Mexico; Managing and directing outside 
contractors in the U.S. and Europe including Refurbco Inc. and UTI Logistics in 
Ew·ope and other temporary workers provided by staffing agencies such as United 
Staffing as· needed with an approximate annual direct cost of $1 million per year; 
Supervising and directing performance evaluations for the Company's products at 
the customers' plants; Making recommendations for changes in the company's 
products and to implement field problem resolution actions; Managing, directing 
and coordinating resources for product and services improvement initiatives and 
problem resolution; , Executing the Company's policies to analyze our clients' 
needs to deliver the Company's products in accordance with clients' specifications 
and to mmtmtze production problems · in assembly plants; Making 
recommendations to achieve cost reductions to supp011 continuous improvement 
of products; Managing and directing the resolution of shipping, packaging and 
handling issues concerning the Company's products; Managing and directing 
quality control for technical service engineering functions, and trouble shooting 
(b)(6)
Page 10 
' 
[sic] problems delegating tasks and other usual managerial duties. In general, [the 
beneficiary] will continue to manage and direct the Company's U.S. technical 
service engineering functions and will have discretionary authority over such day 
to day operations. 
Additionally, the petitioner included charts listing the beneficiary's responsibilities , in pertinent 
part, as follows: 
Oversee Quality Control, Materials Planning & Packaging - Responsibility to 
oversee, manage and direct the development of the service engineering functions -
-- quality control, materials planning, and packaging for the proper response and 
resolution -- to serve . U.S. customers with an approximate direct and indirect 
annual value of $.5 . million . This function is an integral part of the Company's 
growth because the Technical Service Engineer leads the coordinated response to 
identify, correct, and improve the entire spectrum of the Company's products from 
design through response and resolution of customer issues. 
Lead Liaison Activities with Clients to Meet Needs - Responsibility to lead and 
direct liaison with senior management, quality control managers, and engineers 
within and outside the company to meet clients' needs. 
Manage, Develop & Direct Performance Evaluations- Responsibility to lead and 
direct. a team of engineers and quality control managers within and outside the 
company to conduct performance evaluations of the company's products at the 
customers' plants and make recommendations for changes in the Company's 
products . Related responsibility to manage, direct, and coordinate resources with 
managers and professionals within the Company and clients for product and 
services improvement initiatives and problem resolution. 
Technical Management - Manages and directs quality co_ntrol for technical service 
engineering functions for U.S. customers; Manages and directs quality control for 
technical service engineering [sic] Evaluates and determines department's 
compliance with departmental budget & disposition of quality claims; evaluates 
prospective new department employees; assists in determining disposition of 
legal claims; & monitors preventive & corrective actions from quality complaints; 
& trouble [sic] shooting problems . 
In the RFE issued on July 22, 2011, the director requested a description of the beneficiary's 
specific duties including the actual daily tasks performed and an estimate of how much tin1c the 
beneficiary would spend on each task. The director also requested an organizational chart 
identifying employees who will be directly or indirectly managed or supervised by the 
beneficiary. The chart was to include employee names, position titles and duties, and 
qualifications for any subordinates·. The director also asked for evidence clearly identifying 
those individuals who would be petforming any non-qualifying tasks associated with the 
beneficiary's area of responsibility. 
(b)(6)
Page II 
In a letter dated October 13, 2011, in response to the RFE, the petitioner stated that the 
beneficiary would serve as technical services manager. The petitioner reiterated that the 
· beneficiary would have the responsibility to manage . and din~ct key functions in the U.S. 
operations, namely managing and directing quality control logistics, materials planning, and 
packaging for the proper response and resolution to serve customers,· the company .and its 
affiliates. Iri. addition, the petitioner provided the following statementregarding the beneficiary's 
allocation of time among duties: 
5% Discretionary authority to negotiate key contractual proviSions with an 
economic impact of $100,000 to $1 milliori per contract for the return of glass . 
products, pre- and post- order product changes which are related to glass 
manufacturing products. 
5% _ Managing and directing outside contractors m the U.S. and Europe 
including and in Europe and other temporary 
workers provided by staffing agencies such as United Staffing · as needed with an 
approximate annual direct cost of $1 million per year. 
40% Oversee, manage, and _direct the development of the service engineering 
functions for quality control, materials planning, and packaging for the roecr 
response and resolution to serve customers including 
and r and its affiliates. The scope of 
this duty ranges from the design of new glass products, manufacturing, warehouse 
inventory, accounting, and customer specification through the customer's use of 
the company's glass packaging products. Quality control is understanding market 
requirements and translating them to ~pecific designs that the manufacturing 
plants can follow and evaluating final product perfonnance at the customers' line, 
besides the goals, metrics and strategy. Management of packaging materials is 
everything related to how the main product .will be packed, handled , stored. 
contained, and displayed. This ·is a multitasking activity since it r-equires close 
monitoring and understanding of all the surrounding elements that _ compose a 
container such as 1abe1s, closures, filling process , transportation , storing , and 
display facilities while also ensuring that esthetics [sic] and functionality are met. 
20% Liaise · with senior management, engineers, operations, packaging or 
quality directors within and outside the company to meet clients' needs. 
10% Lead and direct a team of engineers and quality control managers within 
and outside the company to conduct performance evaluations of the company's 
products at the customers' plants. Develop and direct recommendatim1s for 
changes in the company's products to implement field problem resolution actions. 
10% Manage, direct; and coordinate resources with managers and professionals 
within _the Company and clients for product and services improvei_Ilent initiatives 
(b)(6)
Page 12 
and problem resolution. Liaising with university degreed plant engineers with the 
Companis affiliates in Mexico to reach quality' standards, maximize operational 
efficiency; and reach goals for quality assurance to minimize returns and reduce 
costs. 
10% Lead and direct recommendations to achieve cost reductions to support 
continuous improvement of products; formulate policy, direct and lead project 
teams for service improvement initiatives and problem resolution. 
The petitioner also provided an organizational chmt for the U.S. company, dated October 11, 
. 2011. The chart indicates that the beneficiary reports to a quality assurance manager and 
supervises one quality assurance supervisor and one technical service engineer. According to the 
petitioner, the quality assurance supervisor position requires a bachelor's degree in industrial 
engineering and a minimum three years of experience in a glass manufacturing plant. The 
position description was as follows: 
t 
. This position supervises the audits and re-select/pack and reviews packaging 
operations to confinn the products manufactured by [the petitioner's] affiliates are 
delivered in accm~dance with the defined quality specification set by [the 
petitioner's] customers and Quality Department.· The duties include the following: 
Audit inventories to verify finished goods are within the product specification 
· guidelines; Hire, train and supervise re-select/repack crews at various project 
locations; Direct· training for new hires to learn the Company's proprietary quality 
control procedures; Repmt information to Quality Department on a daily basis; 
Comply with ISO 9001 standard; Recommend changes in sampling methods of 
[the petitioner's] affiliate products, as needed; Taking e::orrective actions as 
needed to maintain the quality process; Applying ql!ality controls to achieve 
objectives; and Mamiging the Company's training program for quality control at 
the Laredo, Texas warehouse facility .. 
A duty description for the technical service engineer was included since the employee was listed 
on the petitioner's organizational chart as subordinate to the beneficiary, but it is noted in the 
employee's description that he actually works for an affiliate of the petitioner. The duty 
description .for the technical services engineer is precisely the same as the quality assurance 
supervisor's duty description. The petitioner also noted that the beneficiary's supervisor, the 
general assurance manager, is located in Monterrey, Mexico. 
Also as part of the RFE response, the petitioner submitted a third description of the beneficiary's 
dutieo with the petitioner. This description was very similm, but not exactly the sa'me as the 
description provided in the initial petition. However, no specific detail was provided, rather, it 
was another generalized broad discussion of the beneficiary's overall responsibilities in four 
separate functional areas already provided in the original charts. · 
Finally, the petitioner provided another document which appears to be the company's official 
position description for the technical services manager position, dated June 1, 2010. While this 
(b)(6)
Page 13 
document is unsigned and does not have the beneficiary's name on it, it does list the quality 
assurance manager and technical service engineer as the position's only two direct reports. 
Presumably, this document represents a fomth description of the beneficiary's duties with the 
petitioner as technical services manager as follows: 
• Administer the investigations of quality complaints. 
• Oversee the flow of information to manufacturing plants. 
• Provide technical assistance to customers. 
' • Proce&s consumer complaints and assist legal counsel. 
• Establish quality levels with customers . 
• Monitor department expenses versus budget. 
• Assist on special projects relative to quality. 
· • To comply with the defined Matrix of Responsibility created for [the 
petitioner] while emphasizing the Quality System Review and the 
fulfillment of its objectives. 
• Verify each complaint is thoroughly investigated and manufacturing plant 
is advised of findings. 
• Verify department and company procedures are followed. 
• Process quality ~laims, ~ssigning responsibility . 
• Assist in training of new service engineers. 
• Determine department's compliance with departmental budget. 
• Determine disposition of quality claims. 
• Evaluate prospective new department employees. 
• Assist in determining disposition of legal claims. 
• Monitor preventive and corrective actions from quality complaints. 
Upon review of the petitioner's response, the director determined that the petitioner did not 
establish that the beneficiary would be primarily employed in a managerial or executive capacity . 
The director observed that the petitioner described the beneficiary's overall responsibilities but 
failed to provide specific tasks and actual duties that the beneficiary would perform on a daily 
basis, as requested. 
Further, in reviewing the evidence in support of the petition, the director noted discrepancies 
between the beneficiary's duties as provided in the petitioner's letters and the 2010 official 
company job description for the beneficiary's position. In the 2010 description for Technical 
Services Manager, the beneficiary was expected to perform duties such as monitoring 
department expenses, provide technical assistance to customers, process consumer complaints 
and process· quality claims. In the petitioner's letter and subsequent narrative description, this 
same job position included responsibilities that were much broader in scope and included 
language such as "leading," "directing," ·"overseeing," and "managing." The·director recognized 
these conflicting job descriptions and . expressed concern that based on the official position 
description, the beneficiary was likely engaged in activities that required performing the function 
and not managing the· function. The director found that the petitioner had not established that the 
beneficiary would be performing high level responsibilities as required under the statute. 
(b)(6)
Page 14 
On January 3, 2012 the petitioner submitted a legal brief and documentation to the director with 
a motion to reconsider the decision. The legal brief and another letter from the. Vice President 
stated that effective January 1, 2012, the beneficiary would be pr~moted to a new position. The 
beneficiary would still be a technical service manager but he would report to a different manager 
and have a broader area of responsibility This promotion reflected a change in salary and change 
in duties which were broadly -listed but not sufficiently detailed. A new organizational chat1 was 
included showing that five subordinate technical service engineers, two quality assurance 
supervisors, one technical service intern and a technical service coordinator all reporting directly 
to the beneficiary. The beneficiary reported to both the company president, and the quality 
assurance manager. The director dismissed the motion on March 21, 2012 without addressing 
the merits of the petition and _the evidence submitted on motion. 
On appeal the petitioner asset1s that the director failed to properly consider the beneficiary's 
managerial duties. The petitioner further asserts'thatthe director misunderstood the nature of a 
functional manager's duties and failed to appreciate the evidence presented. As part of the 
appeal, the petitioner requests consideration of the RFE response and the motion to reconsider. 
In examining the executive or managerial capacity of the beneficiary, the service will look first 
to the petitioner's description of the job duties. See 8 C.F.R. 204.5(j)(5). The petitioner's letter in 
support of the the initial petition provided a general description of the beneficiary's · overall 
responsibilities in the United States The _petition also included several charts which provided 
slightly more detail regarding the beneficiary's responsibilities in four separate areas. 
Subsequently , the petitioner provided two more descriptions in the RFE response. One of these 
two descriptions included a percentage of time allocated to a list of generalized responsibilities 
similar to those previously noted. The final duty description was an "official" duty description 
and it was completely different from anything previously submitted . . As noted by the director, 
this . "official" description listed numerous duties, most of which appeared to be· non-qualifying 
such as processing claims, monitoring actions, proving technical assistance to customers, and 
processing complaints. Overall, the petitioner's submission of these varying descriptions for the 
same position results in a very unclear picture of the scope of the beneficiary's authority and of 
exactly what duties will perform on a day-to-day basis in the position of technical services 
manager. It is incu·mbent upon the petitioner to resolve any inconsistencies in the record by 
. independent objective evidence. Ally attempt to explain or reconcile such inconsi_stencies will 
not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth 
lies. Matter of Ho, 19 I&N Dec. at 591-92. 
At the time of filing, the petitioner stated the the beneficiary was to be employed as a functional 
manager responsible for essential functions of the company. As noted above, in order to 
-establish that the beneficiary's position is a function manager position, the function managed 
must be described with specificity. 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 
10l(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(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 
(b)(6)
Page J:> 
to be performed in managing the essential function, i .e. identify the fmiction 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. See 8 C.F.R. § 204.5(j)(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. 
In this matter, the petitioner failed, to clearly and consistently describe the beneficiary's duties 
and thus failed to effectively establish the proportion of the beneficiary's daily duties attributed 
to managing the claimed essential function as required by the statute. In response to the RFE 
the petitioner did allocate a percentage of time to each the beneficiary's duties, however the 
percentages were allocated to generalized areas of responsibilities taken from the original letter. 
The petitioner did not offer· any further detail of .the beneficiary's tasks as requested by the 
director. 
Further, the petitioner provided other duty descriptions for the beneficiary that were broadly 
defined and included duties that appeared to be non-qualifying. These non-qualifying duties 
were not included in. the petitioner's breakdown of the beneficiary's duties; therefore, the 
percentages provided cannot be considered to provide an accurate breakdown of the beneficiary's 
time. For example, duties such as "managing and directing the resolution of shipping, packaging 
and handling issues" and "managing and directing special projects" do not provide any insight 
into what ta~ks the beneficiary would perform on a daily basis .. The duty description that 
provides the most detailed account of the position is the official position description, and this is 
the description that includes a number of non-qualifying duties not mentioned elsewhere in the 
record. Overall, based on these inconsistencies, it is not possible to determine from the record 
and the general descriptions provided whether the beneficiary will primarily be performing non­
qualifying duties associated with the "services engineering" function or will be managing the 
function. · 
As noted above, the petitioner has submitted an expert opinion letter to refute the director's 
findings that the petitioner's position description was vague. Again, the letter fails to 
acknowledge the "official" position description for the technical support manager which includes 
duties that are quite different from the petitioner's narrative descriptions of the beneficiary's 
duties, and duties that appear to be clearly non-qualify~ng in natme. According to the affidavi't, 
this individual reviewed the petition and the director's decision and offers his opinion that the 
director erred in finding the beneficiary was not qualified as managerial or executive in his 
position. Notably, the affiant stated the beneficiary was engaged in managerial duties but he'also 
did not reference the applicable statutes in his analytical process. He noted "the beneficiary's job 
description may well be 'generic and lacks specific descriptions' but that is the nature of the 
managerial position he hel9" in support of his assertion that more specificity of a manager's job 
description is not always possible. 
Nevertheless, not only i·s specificity possible but it is required if the petitioner is to meet the 
burden of proof for this petition. The AAO may, in its discretion, use as advisory opinion 
statements submitted as expert testimony. However, where an opinion is not in accord with 
other information or is in any way questionable, the AAO is not required to accept or may give 
(b)(6)
Page 16 
less weight to that evidence. Matter of Caron Internationai, 19 I&N Dec. 791 (Comm'r 1988). 
Since the opinion offered here is not based on the critical statutory definitions and it fails to 
address the inconsistent duty _ description, the opinion is not found to be persuasive. · Further, 
since the inconsistency between the two job descriptions was one of the stated reasons for denial, 
and has not been clarified, the petitioner has not overcome the reasons for denial. 
Notwithstanding the petitioner's assertion that the beneficiary is a function manager, since the 
beneficiary is expected to "oversee, manage, and direct the development of the service 
engineering functions for quality control, materials planning, and packaging for the proper 
response and resolution to serve customers" presumably there are employee s to be directly or 
indirectly supervised by th~ beneficiary and to cany out non-qualifying duties associated with 
the function. Nevertheless , the organizational chart provided by the petitioner reflects only two 
individuals subordinate to the beneficiary and one of them works outside the United . States. 
Despite the director's request for information regarding employees subordinate to the beneficiary. 
and employees expected to perform non-qualifying duties, the petitioner failed to provide any 
employees names or positions to reflect who the beneficiary would be managing, directing and 
overseeing on a daily basis ~ Given the large scope of claimed duties, lack of subordinate 
personnel, and lack of an explanation from the petitioner it is unclear how the beneficiary could 
limit himself to primarily performing only in a managerial capacity. While performing non­
qualifying tasks necessary to produce a product or service will not automatically disqualify the 
beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner 
still has the burden of establishing that the beneficiary is "primarily" performing managerial or 
executive duties. Section 101(a)(44) of the Act. Whether the beneficiary is an "activity" or 
"function" manager turns in part on whether the petitioner has sustained its burden of proving 
that his duties are "primarily" managerial in nature. 
As part of the appeal, the petitioner asserts that the beneficiary has been promoted aQ.d given an 
increased salary and new duties. Specifically, the beneficiary "will have the vital responsibility 
to manage and direct key functions in our US operations, namely manage and direct quality 
control logistics, materials planning, and packaging for the proper response and resolution to 
serve our customers." The petitioner stated that in addition to new responsibilities, the 
beneficiary would now manage and direct five technical service engineers , two quality assurance 
supervisors, a technical service intern arid a technical service coordinator . On appeal, a 
petitioner cannot off~r a new position to the beneficiary, or materially change a position's title, its 
level of authority within the organizational hierarchy, or the associated job responsibilities . The 
petitioner must establish that the position offered to the beneficiary when the petition was filed 
merits classification as a managerial or executive position. Matter of Michelin Tire Corp., 17 
I&N Dec. 248, 249 (Reg. Comm'r 1978). A petitioner may not make material changes to a 
petition in an effort to make a deficient petition conform to USCIS requirements. ·See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). If significant changes are made to the 
initial request for approval, the petitioner must file a new petition rather than seek approval ofa 
petition that is not supported by the facts in the record. 
(b)(6)
Page 17 
Based on the foregoing discussion, the petitioner has not .established that it would emplqy the 
beneficiary in a primarily managerial or executive capacity. For 
.this additional reason, the 
appeal will be dismissed. . 
. . 
It must be also be noted that many 1~140 immigrant petitions are denied after USCIS approves 
prior nonimmigrant 1-129 L-lpetitions. See, e.g., Q Data Consulting, Inc. v~ INS, 293 F. Supp. 
2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin 
Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). ·Examining the consequences· of 
an approved petition, there . is a s.ignificant difference ·between a nonimmigrant L-1 A visa 
classification, which allows an alien to enter the United States temporarily, and an immigrant E-
13 . 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. Cf §§ 204 and 214 
of the Act, 8 U.S.C. §§ 1154 and 1184; see also § 316 of the Act, 8 U.S.C. § 1427: Because 
USCIS spends less time reviewing 1-129 nonimmigrant petitions than 1.:140 immigrant petitions, 
some nonimmigrant L-lA petitions are simply approved in error. Q Data Consulting, Inc. v. 
INS, Z93 F. Supp. 2d at 29-30; see also 8 CF.R. § 214.2(1)(14)(i)(requiring no supporting 
documentation to file a petition to extend an L-1A petition's validity). 
IV. Conclusion · 
The petition will be denied for the above ~tated reasons. In visa petition proceedings, the burden 
of proving eligibility for the benefit sought remains entirely withthe petitioner. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the director's 
· decision will be affirmed and the petition will be denie~l. 
ORDER: The appeal is dismissed.