dismissed EB-1C Case: Landscaping And Construction

(b)(6)
DATE: JAN 0 5 2015 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department ofHomeland 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 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of thelmmigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCfiONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
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DISCUSSION: The Texas Service Center Director (director) denied the preference visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner filed this Form 1-140, Immigr�nt Petition for Alien Worker, to classify the beneficiary 
as an employment-based immigrant pursuant to section 203(b )(1)(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. The 
petitioner is engaged in landscaping and construction, and claims to be a subsidiary of 
, the beneficiary's former employer, located in Venezuela. The 
petitioner seeks to employ the beneficiary in the position of General Manager. 
On March 13, 2013, the director denied the immigrant petition, finding the petitioner had failed to 
establish that the beneficiary would be performing qualifying managerial or executive duties in the 
United States. 
The petitioner subsequently filed a motion to reopen which was dismissed. Now on appeal, the 
petitioner submits a brief disputing the director's adverse findings. 
I. THE LAW 
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 py 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. 
Additionally, the regulations at 8 C.P.R. § 204.5(j)(3)(i) state that the petitioner must provide the 
following evidence in support of the petition in order to establish eligibility: 
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NON-PRECEDENT DECISI0/1 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside the 
United States for at least one year in a managerial or executive capacity by a 
firm or corporation, or other legal entity, or by an affiliate or subsidiary of 
such a firm or corporation or other legal entity; or 
(B) If the �lien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which 
the alien was employed overseas, in the three years preceding entry as a 
nonimmigrant, the alien was employed by the entity abroad for at least one 
year in a lllanagerial or executive capacity; 
(C) The prospective employer ip the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by which 
the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at least 
one year. 
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 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. 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. 
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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. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, USCIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. Section 
101(a)(44)(C) of the Act. 
II. THE ISSUE ON APPEAL 
A. U.S. Employment in a Managerial or Executive Capacity 
The issue to be addressed is whether the petitioner established that it will employ the beneficiary in a 
qualifying managerial or executive capacity. 
1. Facts 
The petitioner has offered the beneficiary a permanent position as general manager. The petitioner 
previously filed a Form I-129 and obtained an L-1A visa for the beneficiary.1 In a letter of support, 
the petitioner explained that the position of general manager is "crucial to the success of the 
company" and that the beneficiary "manages, plans, directs, and supervises the operations of the 
business enterprise with the assistance of subordinate managers and professionals in the United 
States." The petitioner also stated that the beneficiary "serves at the highest level of the 
organization," and "only received general supervision by the company's Board of Directors." In 
support of the petition, the petitioner provided the following job description: 
• Planning and directing the operation and expansion of the company; 15% 
• Managing finances; 10% 
1 Receipt valid from January 25, 2010 to January 3, 2013. 
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NON-PRECEDENT DECISION 
• Developing and implementing policies and procedures for company operations; 
10% 
• Overseeing the contract negotiation with current and potential suppliers; 5% 
• Formulating pricing policies, approval of Project Budget and preparation of 
project estimates to obtain new jobs; 10% 
• Approving the budget for the company and determining allocation of funds; 10% 
• Planning and implementing new operating procedures to improve efficiency and 
reduce costs; 10% 
• Directing streamlined training programs to supervise and direct sub-managers and 
overseeing manager training programs (including hiring and firing); 10% 
• Directing Contract negotiation and developing and implementing marketing 
strategies; 10% 
• Conducting meetings with property owners, field staff and subcontractors. 10% 
The petitioner also submitted an organizational chart that indicated the beneficiary as General 
Manager, who in turn supervises the: Project Manager, Financial Manager, Design/Installation 
Supervisor, Supervisor, Office Manager and three workers. The petitioner provided a brief job 
description for each employee; indicating that the Financial Manager "supervises general accounting 
and finance matters;" the Project Manager "participates in the conceptual development of projects 
and oversees its organization, scheduling and implementation;" and the Office Manager "manages 
administrative and clerical tasks." 
On November 13, 2014, the director sent a request for evidence ("RFE"). In part, the director 
requested a detailed job description of the beneficiary's specific tasks (rather than categories of 
duties), including the percentage of time spent on each task. In addition, the director requested all 
Forms W-2 and/or 1099 MISC for all employees employed by the petitioner in 2011. 
In response to the director's RFE, the petitioner provided the beneficiary's proposed duties and the 
percentage breakdown that was previously submitted but added several examples of tasks to be 
performed by the benef iciary. The pet itioner also provided the tax forms for all employees in 2011. 
According to the Form 941, Employer's Quarterly Federal Tax Return, for all four quarters of 2011, 
the petitioner employs six to seven individuals. 
The director denied the petition, fmding that the petitioner failed to establish that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity. 
2. Analysis 
When examining the executive or managerial capacity of the beneficiary, we review the totality of 
the record, starting first with the petitioner's description of the beneficiary's proposed job duties. See 
8 C.F.R. § 204.5(j)(5). A detailed job description is crucial, as the duties themselves will reveal the 
true nature of the beneficiary's foreign and proposed 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 AAO will then 
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consider this information in light of other relevant factors, including job descriptions of the 
beneficiary's subordinate employees, the nature of the business that is conducted, the petitioner's 
subordinate staff, and any other facts contributing to a comprehensive understanding of the 
beneficiary's actual role within the petitioning entity. While an entity with a limited support staff 
will not be precluded from the immigration benefit sought herein, it is subject to the same burden of 
proof that applies to a larger entity with a moderate or large subordinate staff. In other words, 
regardless of an entity's size or support staff, the petitioning �ntity must be able to provide sufficient 
evidence showing that it has the capability of maintaining its daily operations such that the 
beneficiary would be relieved from having to primarily perform the operational tasks. 
In the present matter, upon review of the totality of the record, the evidence does not support a 
finding that the beneficiary would allocate his time primarily to the performance of tasks that are 
within a qualifying managerial or executive capacity. 
The job description includes several non-qualifying duties such as the beneficiary will be responsible 
for "dealing with suppliers regarding negotiations over the credit lines when the appropriate 
Manager needs support;" "attending occasional meetings with suppliers to maintain in good terms 
the business relationships;" "directing landscaping service simplification and standardization to 
eliminate unprofitable services;" "establishing schedules for each project;" and, "directing and 
coordinating contract negotiation and activities involving sales of landscaping services and projects." 
The petitioner stated that the beneficiary will work with its subordinates to manage these tasks but 
upon review of the tax statements for 2011, it is not clear if every employee listed on the 
organizational chart was working full time. For example, in 2011, the Design/Installation Supervisor 
was paid $5,403.68; and the Supervisor was paid $8,091.25. These salaries do not represent full­
time employment. Thus, it is not clear who is performing the project management operations such as 
meeting with clients, planning the technical specifications of a project, going to the project site 
regularly, managing the workers of the project site and handling any problems or complaints. It 
appears that the beneficiary may be in charge of project management rather than directing such 
activities through subordinate employees. 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 Intn '!., 19 l&N Dec. at 604. 
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, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers 
in elementary or seconqary schools, colleges, academies, or seminaries." The term "profession" 
contemplates knowledge or learning, not merely skill, of an advanced type in a given field gained by 
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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 of Sea, 19 I&N Dec. 817 
(Comm'r 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 
(D.D. 1966). 
Therefore, we must focus on the level of education required by the position, rather than the degree 
held by subordinate employees. 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. In the instant case, the petitioner has not, in fact, established 
that a bachelor's degree is actually necessary, to perform the duties of the Financial Manager, who 
"supervises general accounting and finance matters" or the Project Manager, who "participates in the 
conceptual development of projects and oversees its organizational, scheduling and 
implementation," or the Office Manager, who "manages administrative and clerical tasks." 
The petitioner has failed to provide a sufficiently detailed explanation, along with credible and 
probative supporting documentation, establishing the U.S. entity's overall organizational structure, 
staffing levels, and the scope of its business activities at the time of filing. The record is unclear as 
to the beneficiary's actual role will be, and as to the petitioner's actual staffing levels. Overall, the 
record is insufficient to establish that the beneficiary will be employed in a primarily managerial or 
executive capacity. 
Ill. CONCLUSION 
The petition will be denied and the appeal dismissed for the above. stated reason. 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). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.