dismissed EB-1C Case: Led Lighting And Electronics

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-E-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 15,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an LED lighting and electronics business, seeks to permanently employ the 
Beneficiary as its vice president of operations under the first preference immigrant classification for 
multinational executives or managers. See Immigration and Nationality Act (the Act) 
section 203(b)(I)(C), 8 U.S.C. § 1153(b)(1)(C). This classification allows a U.S. employer to 
pem1anently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that the Beneficiary was employed abroad in a managerial or executive 
capacity for at least one year in the three years preceding his entry to the United States as a 
nonimmigrant. 
On appeal, the Petitioner asserted that the Director erroneously denied the petition based on the 
Petitioner's failure to submit evidence that was never requested. 
After an initial review of the record and appeal, we issued a notice of intent to dismiss and request 
for evidence (NOID/RFE) to allow the Petitioner an opportunity to address both the Beneficiary's 
employment abroad and its qualifying relationship with the Beneficiary's foreign employer.
1 
Upon 
de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the tiling of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b )(I )(C) of the Act. 
The Form 1-140, Immigrant Petition tor Alien Worker, must include a statement from an authorized 
otlicial of the petitioning United States employer which demonstrates that the beneficiary has been 
1 The Petitioner's response to the NOID/RFE was sufficient io establish that it has a qualifying relationship with the 
Beneficiary's employer abroad and we will not address this issue in this decision. 
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employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the tiling of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or af1iliate of the foreign employer, and that the prospective U.S. employer has 
been doing business tor at least one year. See 8 C.F.R. § 204.5(j)(3). 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, fimction,or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
l01(a)(44)(A) of the Act, 8 U.S.C. § IIOI(a)(44)(A). 
"Executive capacity" is defined as an assignment within an organization in which the employee 
primarily: directs the management of the organization or a major component or function of the 
organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section IOI(a)(44)(B) ofthe Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (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 l 0 I (a)( 44 )(C) of the Act. 
II. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The Director determined that the Petitioner did not establish that the Beneficiary had one year of 
employment abroad in a managerial or executive capacity within three years preceding his entry to 
the United States. Specifically, the Director found that the Petitioner had not provided a description 
of the Beneficiary's duties with its foreign afliliate in response to a request for evidence (RFE), and 
therefore had not established that the Beneficiary's employment abroad was managerial or 
executive. 
On appeal, the Petitioner asserted that the Director's RFE did not advise the Petitioner of a 
deficiency in the record with respect to the Beneficiary's employment abroad, nor did it clearly 
request that the Petitioner provide a more detailed job description. We agreed with the Petitioner 
that the Director's RFE was not sufficiently clear, issued a NO!D/RFE addressing the issue, and 
have reviewed the Petitioner's response in reaching our detennination 2 
2 In the denial decision, the Director did not acknowledge or discuss any of the brief job descriptions addressed above. 
Rather, the Director denied the petition because the Petitioner did not submit a job description for the Beneticiary's 
employment abroad in response to the Director's RFE, which did not clearly request such evidence. 
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The regulations require that, if a beneficiary is already in the United States working for an entity that 
has a qualifying relationship with his or her foreign employer, the petitioner must establish that the 
beneficiary was employed by the entity abroad in a managerial or executive capacity for at least one 
year in the three years preceding the beneficiary's entry as a nonimmigrant. See 8 CFR. 
§ 204.5(j)(3)(i)(B). 
The Beneficiary began working for the Petitioner as a nonimmigrant L-1 B intracompany transferee 
in April 2011. The Petitioner's supporting letter stated that its foreign affiliate employed the 
Beneficiary as an electrical engineer !rom 2005 to 2007, as sales director from 2007 to 2009, and as 
vice president from 20! 0 until 20 II. In a Form G-325-A, Biographic Information, the Beneficiary 
submitted with his concurrently filed Form 1-485, Application to Register Permanent Residence or 
Adjust Status, he stated that he has resided in the United States since November 2009. 
The Petitioner must establish that the Beneficiary acquired his year of qualifying employment 
abroad when he was physically present outside the United States. Therefore, while the Petitioner 
states that its foreign affiliate employed the Beneficiary as its vice president and paid his salary for 
all of 2010, the record does not establish that he was employed abroad in that position for a full 
year. In fact, in its supporting letter, the Petitioner stated that the foreign aftiliate promoted the 
Beneficiary to the position of vice president in 2010, when he was "sent to the United States to assist 
with the development of the [U.S.) company." As noted, the Beneficiary indicates that he moved to 
the United States in November 2009. 
Even if the Beneficiary divided his time between the United States and China during part of 2010, 
USC IS records show that he arrived in the United States as a visitor on August 8, 2010, and 
remained here at the time the Petitioner filed a nonimmigrant petition to change his status from B 1 to 
L-1 B on February 3, 2010. Therefore, as we noted in our NOID/RFE, the only claimed managerial 
or executive position the Beneficiary held for at least one full year abroad was the sales director 
position. This earlier position, which the Beneficiary purportedly held from 2007 until 2009, will be 
the focus of our discussion. The Petitioner indicates that the Beneficiary was employed in a 
managerial capacity during this period, so we will not discuss whether the sales director position was 
in an executive capacity. 
USCIS reviews the totality of the evidence when exammmg a beneficiary's claimed managerial 
capacity abroad, including the beneficiary's job duties, the foreign entity's organizational structure, the 
duties of a beneficiary's subordinate employees, the presence of other employees who relieved the 
beneficiary from perfonning operational duties, the nature of the business, and any other factors that 
will contribute to understanding a beneficiary's actual duties and role in the business. Accordingly, our 
analysis of this issue will focus on the Beneficiary's duties as well as the foreign entity's staffing levels 
and reporting structure at the time of his employment abroad. 
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A. Duties 
The Petitioner must show that the Beneficiary performed certain high-level responsibilities 
consistent with the statutory definition of managerial capacity. Champion World. Inc. v. INS, 940 
F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the Petitioner must prove that 
the Beneficiary >vas primarily engaged in managerial, as opposed to ordinary operational activities 
alongside the Petitioner's other employees. See Family Inc. v. USC IS, 469 F .3d 1313, 1316 (9th Cir. 
2006); Champion World, 940 F.2d 1533. 
In a supporting letter submitted with the petition, the Petitioner stated that the foreign entity is "in 
the business of LED lighting." The Petitioner described the Beneficiary's role as sales director as 
follows: 
His duties included leading his sales team. The team was responsible for contacting 
European and North American customers in order to discuss [the foreign entity's] 
revolutionary LED projects and sell the customers LED products .... 
As Sales Director, [the· Beneficiary] developed relationships with many companies 
around the world. He personalty analyzed each of his client's lighting needs, 
proposed LED products or full LED projects for the company and then always 
followed up with their purchases and endeavors with [the foreign entity's] LED 
lights .... 
The Petitioner also mentioned that, in addition to "working in hard sales," the Beneficiary "led, 
managed and actually. implemented lighting projects all over the world," collected information 
regarding lighting trade shows and conferences, and "was the leader in charge of full arrangement 
for each trade show" the foreign entity attended. 
The initial evidence also included a copy of a letter from November 2013, which it had prepared in 
support of a previous nonimmigrant petition submitted on the Beneficiary's behalf. In this letter, the 
Petitioner's president, indicated that the Beneficiary performed the following duties as sales 
director for the foreign entity: 
• Lead a sales team to contact European and North American customers 
• Developed customer resources, analyzed customer's panicular requirement Jnd 
oversa\v project proposals 
• Maintained a good relationship with the company's VIP customers 
• Oversaw the overseas projects and implemented according to the company's plan 
• Oversaw the collection of trade show information 
• Oversaw the trade show exhibitions 
• Oversaw four employees 
Finally, the Petitioner submitted a copy of the Beneficiary's resume, which included duties similar to 
those in the 201 J letter. The resume mentions that he "communicate[ d] [with customers] by email, 
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phone calls, fax, etc. discussing LED projects selling [company] products," and noted "after sales 
service" as part of his responsibility for maintaining good relationships with customers. 
In our NOID/RFE, we advised the Petitioner that the limited descriptions of the Beneficiary's 
employ111ent abroad were insufficient to establish that he was employed in a managerial capacity. 
Specifically, we observed that these descriptions suggest that the Beneficiary "performed a mix of 
non-managerial sales and technical project-related duties while also supervising other staff" The 
Petitioner did not establish how duties such as communicating with customers to sell LED products, 
developing client relationships, personally analyzing clients' lighting needs, recommending 
products, designing LED projects, providing after sales service, implementing LED lighting projects, 
collecting information on trade shows, and arranging for participation in trade shows qualified as 
managerial duties. 
Whether the Benetlciary is a managerial employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" managerial. See section !Ol(a)(44)(A) of the Act. 
Here, the Petitioner did not document what proportion of the Beneficiary's duties abroad were 
manageriai functions and what proportion were non-managerial sales, technical or support functions. 
For this reason, although we agreed with the Petitioner that the Director's basis for denial was not 
properly supported, we could not conclude that the Beneficiary primarily performed managerial 
duties in his role as the foreign entity's sales director. See IKEA US. Inc. v. US. Dept. of Justice, 48 
F. Supp. 2d 22, 24 (D.D.C. 1999). 
In response to our NOID/RFE, the Petitioner submits the following description tor the sales director 
position: 
• Develops and implements strategic marketing plans and sales plans and forecasts 
to achieve objectives tor LED lighting products. (1 0%) 
•· Directs statling, training, and performance evaluations to develop and control 
sales and marketing programs. (l 0%) . 
• Directs sales forecasting activities and sets performance goals accordingly. (5%) 
• Meets with key clients, guiding sales representatives in maintaining relationships 
and negotiating and closing deals. (10%) 
• Plans and oversees advertising and promotion activities including print, online, 
electronic media,· and direct mail. Ensure effective control of marketing results 
and take corrective action to guarantee that achievement of marketing objectives 
falls within designated budgets. (5%) 
• Represents [the foreign entity] at trade shows and events to promote products. 
(5%) 
• Monitors competitor products, sales and marketing activities. (1 0%) 
• Develops and recommends pricing strategy to produce the highest possible long­
term market share. (5%) 
• Oversees and evaluates market research and adjusts marketing strategy to meet 
changing market and competitive conditions. (10%) 
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• Direct staff to draft periodic sales report showing sales volume, potential sales, 
and areas of proposed client base expansion. (5%) 
• Reviews and analyzes sales performances against programs, quotes and plans to 
determine effectiveness. (l 0%) 
• Coordinate liaison and collaboration between sales division and other sales related 
units, including marketing division and manufacturing branch (5%) 
• Assists other departments to prepare product manuals and technical publications. 
(5%) 
• Directs LED lighting product research and development. (5%) 
The Petitioner also provides a slightly revised resume for the Beneficiary which mentions the 
following duties: "atier sales service," "promoie company products at trade shows," "collect sales 
leads at trade shows," "make project proposals and follow up," and communicating with customers 
"to discuss LED projects and sell the company's products." In addition, the Petitioner submits an 
English translation of the Beneficiary's labor contract for the period December 2008 through 
November 2009, which indicates that the Beneficiary was under contract "to do sales work in 
International Sales Division, taking the position of Sales." 
The newly provided position description, while lengthier than the descriptions submitted previously, 
is also substantially different from those descriptions. Specifically, the Petitioner has eliminated 
many of the non-managerial tasks that appeared in earlier versions, such as developing client 
relationships, personally analyzing clients' lighting needs, recommending products, designing and 
implementing LED projects, providing after sales service, and collecting information on trade 
shows. Moreover, the Petitioner adds responsibilities for pricing, marketing, advertising, and 
product development which it did not mention previously. Therefore, the Petitioner did not simply 
add more detail to the previously submitted descriptions, nor did it explain why duties it previously 
attributed to the position are no longer included. The Petitioner must resolve this inconsistency in 
the record with independent, objective evidence pointing to where the truth lies. }vfaller of Ho, 19 
l&N Dec. 582, 591-92 (BIA 1988). 
Because of this unresolved ambiguity, we cannot determine that the newly submitted list of tasks, or 
the percentage of time allocated to each duty, accurately or completely captures the Beneficiary's 
actual duties during the employment abroad. This is especially true in light of the Petitioner's 
concurrent submission of a revised resume that has a different account of the same position, and a 
contract indicating that the Beneficiary's position was a "sales" position. In fact, although the 
Petitioner previously stated that the Beneficiary worked as an electrical engineer for the foreign 
entity from 2005 to 2007 prior to assuming the sales director position in 2007, the Petitioner now 
states on appeal that the foreign entity hired the Beneficiary to work in its international sales division 
in 2007, where he was initially responsible for selling and promoting the company's products. The 
Petitioner states that he was promoted to sales director "soon" after he was hired, but this newly 
introduced information raises questions regarding the Beneficiary's actual dates of employment as 
sales director. 
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Reviewing the newly submitt ed description on its face, we note that it also include s duties that are 
non-m anageria l, suc h as promoting products at trade shows , assisting other department s with 
manual s and technical publi catio ns, and monit oring compe titor's prod ucts and marketing acti vities. 
Further , a number of the duti es are vag ue, suc h as coordi nating "liaiso n and collaboration" between 
division s and ensurin g "effectiv e· cont rol of marketin g .res ults." Other dutie s, such as "deve lops and 
implem ents 
strategic ... sales plans and foreca sts," and "direct s sales forecasting activities" appear 
to overlap. Considering thes e defi ciencies in light of the foregoing discussion, this new ly submitted 
job descripti on has not overcome our concern s regarding the nature of the sales director position 
which the Petitioner consistentl y described at the time offilin g as one that involved a comb ination of 
supervisor y, sa les, and tech nical dutie s tha t could not be deemed prim arily manageria l in nature. 
We acknowledge that the Beneficiary likel y had a senior sales position within the foreign entity's 
LED displ ay division prior to coming to the United States; howeve r, the fact that the Benelic iary 
supervised a department or component of the business does not nece ssa rily establish eligibilit y for 
classificati on as a multinational manager. B y statute, eligibi lity for this classification requires that 
the duties or the Benefi ciary's position abroad be primaril y manage rial in nature. Sectio n 
101(A )(44)(A) of the Act. Even though the Beneficiary may have exe rcised discretion over one of 
the foreign entity 's sales divi sions and Jed a sa les team, the various position description s s ubmitted 
are insuffi cie nt to establi sh that he actually perform ed primaril y managerial job duti es. 
B. Staffing and Organizati onal Str ucture 
Prior to the denial , the reco rd contained limit ed evi dence regardin g the foreign entit y's staffing 
levels and orga nizationa l structur e. The initi al job desc ription s indic ated that the Beneficiar y led a 
"sales team ," and the November 2013 letter fro m the Petiti one r' s pres iden t indicated that he 
"oversaw 4 employees." The Petitioner had also submitted a foreig n ent ity organizationa l chart from 
2009 whi ch showed the ·based sales operation (along with an accounting employee and a 
-based factory) oversee n by the foreign entity's president. The chart depic ted the 
Beneficiary as Director of the " LED Displa y Divi sion," overseein g a Marketing emp loyee, three 
sales managers in an " interna tional sa les" dep artme nt, and two sales managers in a "domes tic sales" 
departm ent, for a total or six named emp loyees. 
In the letter submitted in response to our NOID /RFE, the company's pres ident, explains 
that the foreign entity's structur e grew and chan ged several time s during the Benefi ciary's tenure as 
sales director, and that the Benefic iary's imm ediate s taff ranged from two to four empl oyees. 
states that when he indicated in a Nove mber 20 13 lette r that the Beneficiar y oversaw four 
emplo yees, he meant that the Beneficiar y had four direct repo rts, namely, a· marketing manage r, an 
internation al sales manager, a p roduct manager , and a domestic sales manager. 
The Petition er now submits thre e different organi zational charts , including one chart dated 2008, and 
two dat ed 2009 . The chart from 2008 indicates that the Benefic iary supervi sed a mark eti ng manager 
and an interna tiona l sales manager, who, in turn superv ised two sales managers. The tirst of two 
charts from 2009 is similar to that submitt ed at the time of tiling. However , whe reas the tields for 
"interna tion al sales" and "domest ic sales " were· blank on the prev ious chart, the Pet itioner adde d 
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names for internati onal and domestic sa les department mana gers, thereby showi ng a total of eight 
direct and indi rect subordin ates, rather than six. Finally, a c hart labeled "2009 No. 2" is the s ame , 
but includes a " product mana ger" reporting direc tly to the Benefi ciary. The Petitioner ind icates that 
this em ployee was later transferred to its manufacturin g affili ate in 
Alth ough w e requested that the Petitioner provide payroll or personnel r ecords corroborating the 
foreign entity's employment of individuals named as the Beneficiary's subord inate s o n the 
orga nizat ional chart(s), the only payroll evidence the Petitioner submi tted is for the period Januar y 
20 10 until Dec ember 2010 , after the Beneficiary' s promotion to the v ice presiden t p osi tion . The 
Petitio ner did not submi t pay roll evidence to corrobo rate the informat ion provide d i n the 200 8 and 
2009 organ izational chart s. 
Since the Petitioner claims the Beneficia ry held the position of sales director for the ent irety o f 2009, 
we compared the "2009 No. 2" organizational chart to the fore ign entity's pay roll register f or 
January 20 I 0 and the 20 I 0 organ izational chart. Out of t he nine employees depicted as the 
Bene ficiary' s s ubordinates in the LED Disp lay Division on the latter 2009 organizational chart, only 
two were o n the foreign entity's pay roll as of J an uary 201 0.3 In additi on, acco rding to the 20 I 0 
chart, the " LED Display Divisio n" was staffed by a total of six employees, not ten as depic ted on the 
2009 No. 2 chart. Specific ally, the c hart indicates that the s ales director who replaced the 
Benefi ciary s upervised an international sales mana ger -with two subordin ate sa les assoc iates , and a 
do mestic sales manager with one subord inate sa les associ ate. 
Due to these unexplain ed discrepancies in the structure between the latter 2009 chart and the 2010 
chart and payroll record s, and d ue to the a bsence of the foreign entity's pay roll records for any 
period prior t o 20 I 0, the Petitioner's organiza tio nal cha rts for 2008 and 2009 are not sufti ciently 
corrobo rated in the record. We cannot determi ne the number of employees the Beneficiar y typ ically 
supervised during his te nure as sales director, although we acknow ledge that the Petitioner has 
cons istently stated that the Benef-icia ry led a "sa les team." 
The 
statutory definition of "ma nage rial capaci ty" allows for b oth "pe rsonne l manage rs" and 
" function managers." See sec tion .I 0 I (a)( 44 )(A)( i) and (ii ) of the Act. Personnel managers are 
requi red to primaril y s upervise and contro l the work of other supervisory, · profess ional, or 
manage rial employees. Contrary t o the common understandin g of the word "manager," the statut e 
plainly s tates that a "tir st line s upervisor is not considered to be acting in a manage rial cap acity 
mere ly by virtue of' the superv isor's superviso ry dutie s unless the e mployees supe rvised are 
pro fess iona l."4 Section 10 1(a)(44)(A)( iv) of the Act. If a beneficiary d irect ly supe rvises other 
3 The 20 I 0 chart indicates that a sales manager, assumed the sales director position previously held by the 
Beneficiary, and that another "sales manager," remained with the company as a sales associate 
4 In evaluating w hether a beneficiary manages professional employees, we must evaluate whether the subordinate 
. positions require a baccalaureate degree as a minin;um for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
(dctining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign· equivalent is the 
minimum requirement for entry into the occupation"). Section I 0 I (a)(32) of the Act states that "[t]he term profession 
shall include but not be limited to architects. engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools. colleges, academics, or seminaries." 
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employees, the beneficiary must also have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. Section IOI(a)(44)(A)(iii) of the Act. 
The Petitioner has submitted along with each organizational chart a document that includes each 
employee's education level and a summary of duties. The information the Petitioner submitted for 
the 2008 to 2009 period indicates that every employee in the Beneficiary's department had the word 
"manager" in his or her job title. However, the Petitioner did not indicate that the claimed 
subordinate managers performed managerial or supervisory duties. Rather, the summary of duties 
for the Beneficiary indicated that he was the only member of the division with any supervisory 
duties, such as leading the sales team and training all sales staff. In addition, the Petitioner indicated 
that all employees named in the organizational chart have a "college degree" or "bachelor's" but did 
not establish that a bachelor's degree is actually required to perform sales work for the company. 
Therefore, the evidence does not support a conclusion that the Beneficiary's subordinates were 
supervisors, managers, or professionals, or establish that he acted primarily as a personnel manager. 
The Petitioner has not established, in the alternative, that the Beneficiary was employed abroad as a 
function manager. 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 IOI(a)(44)(A)(ii) of the Act. If a 
petitioner claims that a beneficiary will manage an essential function, it must clearly describe the 
duties to be performed in managing the essential function. In addition, the petitioner must 
demonstrate that "(I) the function is a clearly defined activity; (2) the function is 'essential,' i.e., 
core to the organization; (3) the beneficiary primarily managed, as opposed to perj(mned, the 
function; ( 4) the beneficiary acted at a senior level within the organizational hierarchy or with 
respect to the function managed; and (5) the beneficiary exercised discretion over the function's day­
to-day operations." Maller of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). In this 
matter, the Petitioner has not articulated a function manager claim. 
Based on the number of unresolved ambiguities in the record regarding the Beneficiary's exact dates 
of employment as sales director, his job duties, and the structure of the foreign entity during the 
relevant time period,' the Petitioner has not established that he had the requisite one year of 
employment in a managerial capacity abroad. 
Ill. CONCLUSION 
The appeal must be dismissed as the Petitioner lias not established that the Beneficiary had one year 
of employment abroad in a managerial capacity in the three years preceding his entry to the United 
States as a nonimmigrant. · 
ORDER: The appeal is dismissed. 
Cite as Maller of'A-E-, 10# 787050 (AAO Mar. 15, 2018) 
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