dismissed EB-1C Case: Industrial Tooling

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j 
.. . 
u.s, DepartD;~ent ofllQmei~nd SeciJrlty 
U.S. Citizenship and Immigration Services 
Ofi;.ee of Administrative Appeais 
20 Massachusetts Ave., N.W., MS 2090 
Wa_shiQgton, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PATU::DEC 0 5 2013 OFFICE: NEBRASKA SERVICE CENTER, FILE: 
INRE: Petitioner: 
:Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Exec\lti:ve 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: 
JNSTRUCTIONS: 
Enclosed please find the decision of the Administrat .ive Appeals Office (AAO} iri yot1t case, 
Thi~ js a nbrl-pteceqent (jeci~ion. The AAO does not announce new constructions of law not establish agency 
policy thtot1gh non-pr~cedent decisions. Ifyou believe the AAO incorrectly applied current law or policy to 
your case ot ·ifyou seek to pteseqt new facts for c()n~i<ieratiOn; you may file a motion to reconsider or a mo-tion 
to reopen, respectively . Any motion must be filed on a Notice of Appealot Mohon (F9tm I-290:B.) witbi.f:l 33 
days of the date of this decision. Please review the Fotm l.:290B i)Jstructio~$ a_t 
~!_m=!~'!\V'!·uscis.gov/forms for the latest information on fee, filing location, and other requirements. Se.e 
g./so 8-C.F.R. § 103.5 .. Do not file a motion directly with the AAO. 
Thank you,. 
l/a-
f_R.on Rosenberg 
Chief, Administrative Appeals Office 
www.us~;is.gov 
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DISCUSSION: The Director., Nebraska. Service Center ("the director"), denied the employment­
based ill1li1igrant visa petition and affirmed his decision O!l motiO!l, The matter is now before the 
Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed . 
. The petitioner is a Nevada corporl:ltion ¢I1gl:lged in ,;indt1~trial tooling" that seeks to employ the 
beneficiary as its general . manager. Accotdingl y, the petitioner endea:vors to dl:lsSify fue beQeficj(lry 
as ao employment-based immigrant pursuant to section 203(b)(l)(C:) of the· Immigration and 
Nationality Act (tbe Aqt), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
Ot_l June 21, 2013, the director denied the. petition concluding that the petitioner failed to establish 
. that the beneficiary's proposed employment would be ~ithin a. qualifying managerial or executive 
capacity. The. director subsequently granted the petitio!ler's motion to reopen and affirmed the denial 
of the petition in a .decisi_on dated August 22, 2013, 
./". 
On appeal, counsel disp\ltes tlJ.e director's findings and provides· an appellate brief laying out the 
grcioods for challenging 
th¢. denial. On appeal, counsel for the petitioner e>onten(ls that tbe beneficjary 
manages an essential function. · 
I. THELAW 
Section 203(b) of the Act states in pertinent part: 
(1) Ptiotity Workers ... ~~ Visas. snal_l first be ma,de availaple . , . to qll_l:llified immigrants 
who are aliens described in arty of the following subparagraphs (A) through (C): 
* * 
(C) Certain Multinational Executives and Managers'. -- Afi alien is 
described in this subparagraph if the allen, l.n the 3 years prbceding the 
time 'of t.h.e alien's application for classification and admi_ssioh into the 
United Stl:l,tes und~r this stibpMagr.aph~ has been employed for lit least 1 . 
year by .a fitrfi ot corporation or other legal entity or art affiliat~ ot 
subsidiary thereof and who seeks to enter the United States. in or'der 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 stat.~;~te 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, a!lcl who are comin.g to, the United Sta.tes to work. for the same ~nti.ty, or its 
affiliate bt subsidiary. · · 
. . 
. A United States employer may file a · petition on Form 1--140 for classification of an alien t:indet 
.section 203(b)(l)(C) of the Act as a multinational .executive or manager. No labor certification is 
reql!i_red fqr this classif1cation. The prospective e.mpioyer in the Ur1iteq States must furnish, ?-job 
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offer in the form of a statement which indic<,ttes th<,tt 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 "m~agerial capadty'' means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
com.ponent of the organization; 
(ii) supervises and controls the work of other supetvisoty, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or sl,lbdivision of the organiza~ion; 
/ 
(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 man<;tged; 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 unles_s the employees supervised 
are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The tetiil "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 organiza.tion, component, or 
function; 
. (iii) exercises wide latitude in discretion~ydecision-making; (,l[ld 
(iv) receives only general supetvision . or direction from higher level 
executives, the board of directors, or stockholders of ~he organization. 
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II. The Issue on Appeal 
The sole issue addressed by the director is whether the petitioner established that it would employ the 
beneficiary in a qualifying managerial or executive capacity. 
In e~amining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duti¢s. See 8 C.F.R. § 204.5(j)(5). Published case law clearly 
supports the pivotal role of a clearly defined job descriptiot;1, as the actual duties themselves reveal the 
true nature of the employment. Fedin Bros. Co;; Ltd. v. Sava, 724 F. Stipp. 1103, 1108. (E.D.N ,Y. 
1989), affd, 905 F.Zd 41 (Zd. Cir. 1990); see aiso 8 C.P.R. § 204.5(j)(5). In addition, USCIS 
reviews the totality of the record, which im~ludes IJ.Ot only the beneficiary's job description, but also 
takes into account the nature of the petitioner's business, the employment and remuneratioQ of 
employees, as well as the job descriptions of the bene(iciary's subordinates, if any, and any other 
facts contributing to a complete understanding of a beneficiary's actual role within a given entity. 
The definitions of executive and managerial capacity have two parts. first, the petitioner must show 
that the beneficiary performs the high-level responsibilities that a.te specified in the definitions. 
Second, the petitioner rnust prove that the beneficiary primarily performs these specified 
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion 
World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary 
would be employed in a managerial or executiv~ capacity. 
In a letter dated September 4, 2012, the petitioner stated that the beneficiary, as General Manager­
U.S. Operations - l:las overall respon~ibility for the management and dally operations of [the 
petitioner] as well as the entire U.S. sales system," The letter, due to an apparent missing page, 
contained no further information regarding the benefiCiary's duties. 1 Accordingly, the director issued 
a request for evidence (RFE) and instructed the petitioner to provide: (1) a detailed description of the 
beneficiary's day-to-day duties and the percentage of time he allocates to each specific task; (2) a 
1 The petitioner provided a complete copy of its letter dated September 4, 2012 in support of the motion to 
reopen. In the letter, the petitioner stated that the beneficiary would perform the following duties: ( 1) setting 
str(ltegic and business goals for [the petitioner's] expansion into the U.S. market; (2) develop overall sales 
strategies for the U.S. rn.arket; (3) Create and monitor sales forecasts for all U.S. based sales; (4) recruit, train 
and manage U.S. sales team members; (5) research .and develop new product lines; (6) develop programs and 
marketing strategies designed to introduce new product lines to the consumer; (7) design processes and 
procedures for maQaging warehouse operations (lnct logistics; (8) provide Str(ltegic leadership to human 
resources, information technology, facility maintenance and customer service departments; (9) develop 
sys~ems and processes to maintain inventory control and overseeing all communications with [the foreign 
entity]; and (10) researcl:l, <i~veJop an<J m_ainl~in busiQe~s tel_atiPQS)Jips with customers and potentia_} customers. 
Fyrtner, the petitioner stated that the beneficiary has four subordinates including sales representativt.:s and 
warehouse staff, and manages 12 ifiahufactJ.Iting representative companies with 29 individJ.Ial salespeople. 
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detaile9 org~nizational chart to include the names and detailed job descriptions for the beneficiary's 
subordinates and immediate st~pervisor; and (3) infqrmation regarding the scope and nature of the 
· petitioner's U.S. operations, supported by documentary evidence. 
In respons~ to the RFE. the petitioner stated that the beneficiary holds the position of "US Sales 
Manager," responsible for "managing and supervising the entire system of sales into the United 
States.'' The petitioner did not reference the "General Manager" title indicated on the form I -140 and 
in its previous letter. fhe petitioner stated that the beneficiary would allocate his time as follows: 
40% to management of the, U.S. sales team, including responsibility for hiring, firing, development 
and training, setting goals and providing incentives, overseeing completion of tasks, and scheduling 
resources; iO% to training the U.S. sales team; 25% to managing the U.S. sales operations, including 
directing the distribution and movement of products to customers, establishing sales territories and 
, quotas, establishing training progrl)Jlls, analyzing sales statistics and monitoring customer 
preferences; 15% to U.S. marketing, including creating and managing the m<~.rketing program, 
directing prospective customers to appropriate representatives and product line for sales; evaluating 
new bt~siness, and acting as a point of contact for customers to generate leads for the sales teams; and, 
10% to U.S. warehouse logistics, inc:luding management of daily warehouse and office operations to 
ensure that orders ate filled. 
The petitioner stated that the beneficiary will manage an essential function within the business "in as 
much as the petitioner's principal business is th<lt of a sales and distribution organization and the 
beneficiary is solely responsible for the sales and distribution functions for the company's U.s: 
market." 
The petitioner submitted a copy of its organizational chart, which depicts the beneficiary as "U.S. 
Sales Manager" reporting to the company president. The chart indicates that the beneficiary has four 
direct subordinates including a warehouse manager, two warehouse clerks, and an outside sales 
employee. The chart also depicts 2Z m(ltlt!facturing sales representatives who also report to the 
beneficiary. One other employee, a controller, reports to the president. The petitioner provided the 
requested position descriptions for the beneficiary's subordinates. 
With regard to the proposed position, the petitioner provided a list of job duties accompanied by a 
percentage breakdown. Due to the overly general information, the AAO is unable to gain a 
meaningful understanding of how much time the beneficiary will spend performing qualifying tasks 
versus those that would be deemed non.,qualifying. For instance, in describing the beneficiary's 
proposed employment, the petitioner indicated that the beneficiary will spend 40 percent of his time 
·"responsible for management of lJS sales team." The duties include, in part: "responsible for 
employee performance management; recruitment and dismissal of employees and representatiVes"; 
"mentor, motivate and guide employees and representatives to ensure alignment with strategic 
company vision"; "schedule resources based on business demands"; "set goals and provide incentive 
for employees and representatives to achieve those goals"; "oversee completion oftasks and assigned 
duties"; and, "enforce rules and policies.'' However, it is unclear which specific tasks actually fall 
within these broad categories. Merely using the term "manage" to describe the beneficiary's role 
does not establish that the tasks the beneficiary will perform will be of a qualifying nature. The 
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beneficiary's position description is too general and broad to establish that the preponderance of his 
duties is managerial or executive in nature. 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. The petitioner has failed to provide any detail or explanation of the 
beneficiary's activities in the course of his daily routine. 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). 
The petitioner also stated that the beneficiary will spend 10 percent of his time in the training of the 
U.S. sales team. Thus, the job description indicated that the beneficiary will spend at least 50 percent 
and up to 75 percent of his time in the management and training of the sales team in the United 
States. However, according to the organizational chart, the beneficiary only supervises one employee 
in the sales team as the other employees work Within the warehouse operations. It is not clear how 
the b~neficiary will spend the majority of his time managing and training one employee. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain of reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to Where the truth lies. Matter of Ho, 19 
I&NDec. 582, 591-92 (BIA 1988). 
In addition, the job description stated that the beneficiary Will manage the "representatives." The 
org~iz(ltiom.tl chart also indicated that the beneficiary will manage 10manufacturing representatives. 
The petitioner cl(lrified thCit the manufacturing representatives are not employees~ however, the 
petitioner has indicated that the representatives play a large role in the sales operations for the 
company. The petitioner has not clearly explained or documented the role of the manufacturing 
representatives. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 
1972)). 
The petitioner also stated that the beneficiary will "direct the actual distribution and movement of 
products to customers"; "c.oordinate sales distribution by establishing sales territories, quotas, and 
goals"; ''analyze sales statistics to determine sales potential and inventory requirements"; and, \ 
''monitor customer preferences." However, it is not clear who performs the market research and sales 
research. Similarly, the petitioner stated that the. beneficiary will spend 15 percent of his time 
responsible for u.s. marketing such as "create and m~age the marketing program consisting of 
multiple fotins of advertising such( as website/internet, marketing literature/brochures, apd Word of 
mouth thereby increasing company presence including lead generation for sales representatives"~ 
"direct prospective customers to appropriate representative and product line for sales"~ "evaluate how 
new business is coming in and making plans for its increase"~ and, "act as main point-of-contact for 
customers to determine their product requirements thereby generating leads for the sales team." · 
However, the petitioner's organiz(ltional chi:l.rt did not identify any employees who actually assist in 
performing marketing tasks, thus indicating that the beneficiary himself may be the one to carry out 
these operational fupctions. An employee who "primarily" perfon:ns the tasks necessary to produce a 
product of to provide services is not considered to be "primarily" employed in a managerial or 
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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 Int'l., 
19 J&N Dec. 593, 604 (C6mm. 1988). 
Finally, the petitioner has provided no explanation for the change in the beneficiary's job title from 
,;General Manager" to "US Sales Manager." The initial position description appeared to grant the 
beneficiary broader authority over the U.S. operations and included some responsibilities that were 
not mentioned in the subsequent breakdown of the proffered position, including potentially non­
qualifying duties such as "research, and develop new product lines.'' It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective 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). 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See§ 101(a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate 
whether the subordinate positions require a baccalaureate degree as a minimum for entry into the field 
of endeavor. Section l01(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he tetm profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools"; colleges, academies, or seminaries." The term "profession" 
coptemplates knowledge or learning, not merely skill, of an advanced type in a given field gained by 
a prolonged course of specialized instruction and study of at least baccalaureate level, which is a 
realistic prerequisite to entry into the particular field of endeavor. Matter ofSea, 19 I&N Dec. 817 
(Coiilm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter ofShin, 11 I&N Dec. 686 (D.D. 
1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the 
degree held by sl.lbotdinate employee. . The possession of a bachelor's degree by a subordinate 
employee does not automatically lead to the conclusion that an employee is employed in a 
professional capacity as that term is defined above. IIl the instant case, the petitioner has not, in fact, 
established that a bachelor's degree is actually necessary, for example, to perform the duties of the 
sales representative and warehouse employees. Further, although the petitioner identified one 
employee as the "warehouse manager," both organizational charts indicate that the warehouse clerks 
report to the beneficiary and do not show the warehouse manager as a subordinate supervisory 
employee. 
Finally, the AAO acknowledges coUiisel's contention on appeal that the beneficiary manages an 
essential function of the company. 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 
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defined by statute or regulation. If a petitioner claims that the benefi<:;iary 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 ~ddition, 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. 
ln tbis m~tter, the petitioner has not provided evidence that the beneficiary manages an essentia..l 
function. As noted ~bove, the petitioner provided a brief and vague job description that did not 
discuss how the beneficiary is manc:tging an essential function. Further, the more detailed position 
description provided in response to the RFE indicated that the beneficiary would, be prim.arily 
engaged in the first-line supervision of non-professional employees. Only ori motiori did counsel Jot 
the petitioner . claim that the benefidary manages an essential function by managing a "major 
component of the organization - both in terms of its sales functions as well as its logistical support 
for the entire company.'' Further, the petitioner submitted an opinion letter from Dr. 
Director of Or~dl,late Studies at the Dr. found that "in 
[the] position as General Manager for [the peti~ioner], [the beneficiary] will be responsible for 
managing logistics of the company's business operations, as well as the essential functions [of 
business development, administration, and sales strategy], which demonstrates his key role as a 
function manager." 
A review of Dr. letter reveals that he based his evaluation entirely oil the position 
description for "General Manager" that was provided in the petitioner's letter dated September 4, 
2012. Dr. did not review the more detaileq description for the position of "US Sales 
Manager'' which was provided in response to the RFE and undermines the petitioner's initial claim 
thc:tt the beneficiary . ..is responsible for the company's overall operations. Rather, as discussed, the 
benefiCiary, as US Sales Manager, would allocate over half of his time to managing and training a US 
sales team comprised of one employee and performing m~keting duties, rather th(lll managing a..n 
essential function or functions. 
As such, Dr. letter does not support the petitioner's claim that the beneficiary would be 
employed as a function manager, as his review was based on incomplete evidence and a limited job 
description that was top vague to establish the beneficiary's eligibility under the statute and 
regulations. 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 Intetndtional, 19 I&N Dec. 791 (Comm. 1988). Since the opinion offered here was not ba.sed 
on the beneficiary's complete position description, it has been given limited weight. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operations duties, the nature of the petitioner's 
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business, and any other factors that will contribute to a complete understanding of a beneficiary's 
act.ual duties and role in "' business. In the case of a function manager, where no subordinates are 
directly supervised, these other factors may include the beneficiary's position within the 
organizational hierarchy, the depth of the petitioner's operations, the indirect supervision of 
employees within the scope of the function managed, and the value of the budgets, products, or 
services that the beneficiary manages. 
The fact tbat the beneficiary has been given a managerial job title and general oversight authority 
ovet U.S. sales is insufficient to elevate his position to that of a "function manager" as contemplated 
by the governing statute and regulations. As discussed above, the petitioner has not established that 
the beneficiary's duties are primarily managerial in nature, but rather, the petitioner indicated that 
over half of his time would be spent on the sup~rvision a!ld training of sales staff. 
In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary 
would be ~mployed jn the United States in a quaHfyjng managerial or executive capacity and based 
on this finding, the instant petition cannot 
be approved. 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act., 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Hete, that burden has not 
been met. 
ORDER: The appeal .is dismissed.