dismissed EB-1C Case: Human Resources

(b)(6)
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 
DATE: NAY 0 7 2013 OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF 
PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office 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 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 request can be found at 8 C.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R.§ 103.5(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, 
• 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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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 multinational corporation that seeks to employ the beneficiary in the United States as its 
human resources manager. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. 
In support of the Form I-140 the petitioner submitted a statement dated August 20, 2010. The petitioner 
provided little information about the beneficiary's employment abroad, focusing on the beneficiary's 
proposed position with the U.S. entity. The petitioner provided a description of the duties to be performed by 
the beneficiary along with a proposed percentage breakdown and a list of the beneficiary's subordinate 
employees and descriptions of their respective job assignments. The petitioner indicated that the beneficiary 
is a function manager and provided an organizational chart depicting the proposed position within the human 
resources department. 
The director reviewed the petitioner's submissions and determined that an approval was not warranted. The 
director issued a request for evidence (RFE) dated August 10, 2011 informing the petitioner of various 
evidentiary deficiencies concerning the beneficiary's foreign and proposed employment. The director 
instructed the petitioner to provide the foreign and U.S. entities' organizational charts depicting the 
beneficiary's respective positions with each entity. The director also asked the petitioner to provide a more 
detailed description of the beneficiary's employment abroad, and evidence of the beneficiary's qualifying 
employment accompanied by a detailed description of the duties the beneficiary performed and the percentage 
of time the beneficiary allocated to the performance of each of his assigned tasks. The director asked the 
petitioner to refrain from grouping tasks together when assigning time constraints. Similarly, the director 
asked the petitioner to provide a list of the beneficiary's proposed job duties and their respective time 
constraints. Based on information gathered from the previously provided U.S. organizational chart, the 
director observed that the beneficiary would oversee one manager and several non-professional employees. 
In response the petitioner provided a statement dated October 28, 2011 from counsel addressing the 
beneficiary's proposed employment and a statement dated October 10, 2011 from the foreign entity's human 
resources director addressing the beneficiary's prior employment with the foreign entity. Although instructed 
to do so in the RFE, the petitioner did not 
provide a copy of the foreign entity's organizational chart depicting 
the beneficiary's position abroad prior to assuming his position with the U.S. entity. 
After considering the petitioner's response, the director determined that the petitioner failed to establish that 
the beneficiary was employed abroad and would be employed by the U.S. entity in a qualifying managerial or 
executive capacity. The director considered the job descriptions provided in response to the RFE as well as 
the information contained with the petitioner's organizational hierarchy and concluded that the evidence does 
not establish that the beneficiary's foreign and proposed positions are primarily comprised of tasks within a 
qualifying managerial or executive capacity. The director issued a decision dated December 28, 2011 
denying the petition. 
On appeal, counsel provides a brief in which he summarizes the evidence submitted in support of the petition 
and provides further clarification about the beneficiary's job duties and responsibilities in his position with 
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the U.S. entity. Counsel urges the AAO to consider and rely on prior approvals of the L-1 nonimmigrant 
petitions that the petitioner filed on behalf of the same beneficiary. 
The AAO has reviewed the record in its entirety and finds that counsel's assertions are not persuasive in 
overcoming the director's finding of ineligibility. The AAO will address the petitioner's eligibility and 
counsel's statements in the discussion below. 
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 I-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization 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 frre or recommend those as well as other personnel 
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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: 
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. 
As indicated above, the two primary concerns in this proceeding call for an analysis of the beneficiary's 
employment capacity in his position with the foreign entity and his proposed position with the petitioner. In 
order to address these issues, the AAO will first look to the job descriptions of the beneficiary 's respective 
positions with the foreign and U.S. employers. See 8 C.F.R. § 204.5(j)(5). While other factors are also 
considered , published case law supports the pivotal role of a detailed job description, as the actual duties 
themselves 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); see also 8 C.P.R. § 204.5(j)(5). 
Turning first to the beneficiary 's employment abroad, the AAO will examine the beneficiary's foreign job 
description as contained in the October 10, 2011 statement provided by . ___} the foreign 
entity's director of human resources. According to job description, the beneficiary allocated 
his time to ten categories most of which involved non-qualifying tasks. For instance, with regard to the 
beneficiary's role in resource hunting and recruitment, to which the beneficiary allocated 20% of his time, 
indicated that in addition to various qualifying tasks, the beneficiary also allocated his time to 
mediating union grievances . Similarly, the job description indicated 
that a portion of the beneficiary 's time in 
the category of reports and records was allocated to such non-qualifying tasks as maintaining employment 
documents and data and preparing reports reflecting employee turnover rates, affirmative action, personnel 
actions and safety incidents, creating and organizing records systems for payroll and benefits purposes, and 
collecting human resources data for the purpose of presenting such data in oral and written reports. With 
regard to the category of affirmative action and employment opportunity programs, the beneficiary allocated a 
portion of his time to coaching and counseling plant personnel on dispute resolution and compliance with 
federal, state, and corporate guidelines, which are also non-qualifying operational tasks. In assessing the job 
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duties in the liaison category, the beneficiary allocated his time to non-qualifying tasks such as representing 
the human resources department by facilitating human resources actions, providing job descriptions, and 
preparing various statements and staff reports. Additionally, the beneficiary allocated his time to counseling 
all personnel on employment-related policies, procedures , laws, and regulations; advising managers and 
supervisors on proper supervisory practices; providing solutions to organizational problems; investigating 
discrimination and harassment complaints; arbitrating employee grievances; and developing an annual 
budget. These are operational and administrative tasks rather than tasks within a managerial or executive 
capacity. Furthermore, while stated that the beneficiary coached over 80 team members, he 
failed to provide an organizational chart that corresponds with the beneficiary's period of employment 
abroad, thus failing to establish that the subordinates under the beneficiary's supervision were managerial, 
supervisory, or professional employees. See section 10l(a)(44)(A)(ii) ofthe Act. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his or her time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary 
performed and would perform are only incidental to his positions. 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 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
The petitioner failed to comply with the director's request to list and assign time constraints to individual 
tasks, choosing instead to assign time constraints to broad categories, which included both qualifying and 
non-qualifying tasks. This made it impossible either for the director or for the AAO to gauge how much of 
the beneficiary's time was allocated to qualifying tasks versus those tasks that were indicative of providing 
services associated with the human resources department. 
Turning to the job description for the beneficiary's proposed employment, the AAO finds that the record is 
similarly deficient. The petitioner failed to provide a comprehensive description of the specific qualifying 
tasks that the beneficiary would perform. On the organizational chart the petitioner provided to illustrate the 
hierarchy of the human resources department, the beneficiary's position is not one that is at a senior level with 
respect to the human resources function. Rather, the chart depicts the beneficiary in a lower-level position, 
subordinate to a complex human resources manager and a complex manager. If the AAO were to consider 
the beneficiary as a personnel manager rather than as a function manager, the chart shows that only one of the 
beneficiary's subordinates at the time of filing the petition was a managerial employee 1 while the remainder 
of the positions were either clerical or administrative staff, not professionals as the statute requires. 
The petitioner claims that the beneficiary was and would be employed in the role of a function manager-a 
term that 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-while 
simultaneously discussing the beneficiary's line of subordinate employees, which is applicable to the role of a 
personnel manager . See section 10l(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). Regardless, 
whenever a claim is premised on the assertion that the beneficiary is managing an essential function, the 
petitioner must furnish a written job offer, which identifies the function with specificity, articulates the 
1 While the chart shows a second managerial position subordinate to the beneficiary, that position was vacant at the time 
the petition was filed. 
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essential nature of the function, and establishes the proportion of the beneficiary's daily duties attributed to 
managing the essential function. 8 C.F.R. § 
204.5G)(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). 
The petitioner has failed to establish that the beneficiary's employment abroad and 
his proposed employment 
with the U.S. entity required and 
would require the beneficiary to allocate the primary portion of his time to 
the performance of tasks in a qualifying managerial or executive capacity. While the AAO acknowledges the 
previously approved nonimmigrant petitions that the petitioner filed on behalf of the same beneficiary, 
eligibility has not been established in this matter. Given that the AAO is not required to approve applications 
or petitions where eligibility has not been established, the AAO finds it unnecessary to give any evidentiary 
weight to prior approvals which may have been erroneous. See, e.g. Matter of Church Scientology 
International, 19 I&N Dec. 593, 597 (Comm. 1988). USCIS need not 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). The approval of a nonimmigrant petition does not serve as a guarantee that USCIS will 
approve an immigrant petition filed on behalf of the same beneficiary. USCIS denies many I-140 immigrant 
petitions after approving prior nonimmigrant I-129 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 22 (D.D.C. 1999); Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
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. USCIS is not required to search through previously 
provided evidence submitted in support of other petitions to determine the approvability of the petition at 
hand. 
The AAO fmds that the petitioner has failed to establish that the beneficiary was employed abroad or that he 
would be employed in the United States in a primarily managerial or executive capacity and on the basis of 
these two conclusions the instant petition cannot be approved. 
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.