dismissed EB-1C Case: Industrial Safety Products Distribution

U.S. Citizenship 
and Immigration 
Services 
In Re : 10767653 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 29, 2020 
Form 1-140, Immigrant Petition for Multinational Manager or Executive 
The Petitioner seeks to permanently employ the Beneficiary as its chief operating officer (COO) under 
the first-preference , immigrant classification for multinational managers and executives. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S .C. § 1153(b)(l)(C) . 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its proposed employment of the Beneficiary in the claimed managerial 
capacity. 
The Petitioner bears the burden of establishing eligibility for the requested benefit. See section 291 of 
the Act, 8 U.S.C. § 1361. Upon de novo review, we will dismiss the appeal. 
I. MULTINATIONAL MANAGERS AND EXECUTIVES 
A petitioner for a multinational manager or executive must demonstrate that, for at least one year in 
the three years before a foreign national 's entry into the United States as a nonimmigrant, the 
petitioner, an affiliate, or a subsidiary employed him or her abroad in a managerial or an executive 
capacity. 8 C.F.R. § 204.5(j)(3)(i)(B). A petitioner must also establish that it has been doing business 
for at least one year and that it would employ the alien in a managerial or executive capacity in the 
United States. 8 C.F.R. §§ 204.5(j)(3)(i)(D), (5). U.S . Citizenship and Immigration Services (USCIS) 
may also request additional evidence. 8 C.F.R. § 204.5(j)(3)(ii). 
Il. THE PROPOSED EMPLOYMENT 
The term "managerial capacity" means employment that would primarily involve : 1) managing an 
organization or a department, subdivision , function, or component of it; 2) supervising and controlling 
the work of other supervisory, professional, or managerial employees, or managing an essential 
function within the organization, department, or subdivision; 3) having the authority to hire and fire 
or to recommend those and other personnel actions, or, if not supervising employees, functioning at a 
senior level within the organizational hierarchy or with respect to the managed function ; and 4) 
exercising discretion over the day-to-day operations of the activity or function for which the employee 
has authority. Section 10l(a)(44)(A) of the Act, 8 U.S .C. § 101(a)(44)(A); 8 C.F.R . § 204 .5(j)(2) . 
The definition of "managerial capacity" recognizes managers of both personnel and functions. The 
Petitioner does not propose the Beneficiary's management of an essential function. We will therefore 
consider his proposed employment as a personnel manager. A personnel manager must primarily 
supervise and control the work of other supervisory, professional, or managerial employees. Section 
10l(a)(44)(A)(ii) of the Act; 8 C.F.R. § 204.5(j)(2). "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 10l(a)(44)(A)(iv) of the Act. 
In determining the managerial nature of an offered position, USCIS considers the proposed job duties. 
See 8 C.F.R. § 204.5(j)(5) (requiring a petitioner to "clearly describe the duties to be performed by the 
alien"). USCIS also considers a petitioner's organizational structure and the nature of its business, the 
presence of other employees who would relieve a beneficiary from performing operational duties, the 
duties of a beneficiary's proposed subordinates, and other factors affecting a beneficiary's business 
role. 
A. Job Duties 
A petitioner for a multinational manager must show that a beneficiary would perform the high-level 
responsibilities stated in the definition of the term "managerial capacity." A petitioner must also 
demonstrate that a beneficiary would primarily engage in managerial duties, as opposed to ordinary 
operational activities. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). 
Here, the Petitioner states that it imports industrial work gloves and other personal safety products 
from its parent company in China and distributes them in the United States. The Beneficiary has 
served in nonimmigrant work visa status as the Petitioner's COO since October 2016. The company 
states that it has 13 employees and seeks to permanently employ the Beneficiary as COO. 
The Petitioner submitted a letter from its chief executive officer (CEO) stating that, as COO, the 
Beneficiary would spend the following amounts of time on the following duties: 
• 20%. Directing and overseeing coordination between research, development, marketing, and 
production to improve the company's international expansion plan. Making major business 
decisions to streamline coordination between the Petitioner and its parent. Establishing 
specific short- and long-term goals, assigning work to subordinates, reviewing their work, and 
providing guidance and feedback. 
• 15%. Managing quality and control costs of international operations by making decisions to 
streamline procedures and coordinate with parent company. Making decisions in negotiations 
with customers and suppliers regarding contract terms. Approving plans for management of 
specific products and developing new solutions for clients. 
• 15%. Supervising and controlling the Petitioner's sales performance and industrial 
environment. Leading the sales and marketing team to adjust business development strategies 
to maximize profits and minimize costs. 
• 15%. Overseeing the Petitioner's financial operations, including budget planning and cost 
control. Making ultimate decisions on expenditures and investments, subject to CEO approval. 
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• 15%. Supervising and controlling the Petitioner's marketing strategy development and 
implementation to meet business goals, including advertising, public relations, social media, 
relationships marketing, brand marketing, and internet marketing. 
• 10%. Leading the sales team to identify business opportunities and increase sales through 
establishment of key accounts, driving incremental revenue, and increasing visitation 
frequency among consumer segments. 
• 10%. Setting performance standards, review process, and promotions policy regarding 
subordinates. Monitoring performance of subordinates. Identifying causes of problems and 
productivity. Evaluating performances and making decisions on promotion, hiring, and 
dismissal of employees. 
As the Director found, the Petitioner's proposed job duties are too vague to demonstrate the 
Beneficiary's claimed employment in a managerial capacity. See Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990) (stating: "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"). 
The job duties state many broad tasks - such as directing and overseeing coordination among 
departments and overseeing financial operations - without specifying how the Beneficiary would 
accomplish them. The job duties do not indicate whether the Beneficiary would supervise others to 
accomplish the tasks or complete the duties on her own. The vagueness of the job duties description 
therefore casts doubt on the claimed managerial nature of the Beneficiary's proposed work. 
In response to the Director's written request for additional evidence (RFE), counsel submitted a list of 
more specific job duties. The Director, however, rejected counsel's list, finding that it did not 
constitute evidence. On appeal, the Petitioner argues that its RFE response included documentary 
samples of the Beneficiary's work that corroborated the detailed job duties provided by counsel. The 
work samples included: a client proposal; performance reviews of subordinates; a vendor guide and 
agreement; an employee handbook; sales performance reports; and a product catalog. 
The record supports the Director's rejection of counsel's list of detailed duties. Regulations require a 
statement that a beneficiary would work in the United States in a managerial or executive capacity 
from "the prospective employer." 8 C.F.R. § 204.5(j)(5). Also, as the Director found, case law bars 
statements of counsel from consideration as evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 
534 n.2 (BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). In 
addition, the copies of the Beneficiary's performance reviews indicate that she met with subordinates 
regarding their performances. But the other samples of her work do not corroborate the more specific 
duties provided by counsel. The Director therefore properly rejected counsel's list of more detailed 
job duties. 
On appeal, the Petitioner submits additional evidence of more specific job duties. But the Director's 
RFE provided the Petitioner with a reasonable opportunity to submit such evidence. We therefore 
decline to consider the new materials on appeal. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 
1988) (barring consideration of evidence on appeal where a party received prior notice and a 
reasonable opportunity to submit required evidence). 
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B. Primarily Work in a Managerial Capacity 
Although unaddressed by the Director, the record also does not establish that the Beneficiary would 
primarily serve as a personnel manager. A multinational manager must "primarily" perform the duties 
enumerated in the definition of"managerial capacity." See section 10l(a)(44)(A) of the Act; see also 
Matter of Church Scientology Int'!, 19 I&N Dec. 593, 604 (Comm'r 1988) (stating that "the 
employee's duties must be primarily at the managerial or executive level"). 
Here, the copies of the Beneficiary's performance reviews indicate her supervision and control of the 
work of others. But the other samples of her work do not establish that she would primarily serve as 
a personnel manager. Similarly, some of the job duties provided by the Petitioner - such as assigning 
work to subordinates, monitoring them, and evaluating their performances - indicate that the 
Beneficiary would supervise and control the work of subordinates. But the job duties do not detail the 
amounts of time she would spend on these specific tasks. The record therefore does not establish that 
she would primarily spend her time supervising and controlling the work of others. 
Thus, contrary to the Petitioner's claim, the record does not demonstrate that the Beneficiary would 
primarily serve as a personnel manager. In any future filings in this matter, the Petitioner must 
therefore also submit additional evidence that the Beneficiary would primarily supervise and control 
the work of others. 
III. CONCLUSION 
The Petitioner's job duties are too vague to demonstrate the Beneficiary's proposed employment in 
the claimed managerial capacity, and case law bars us from considering additional evidence on appeal. 
We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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