dismissed EB-1C Case: Maintenance Management

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
SRC 07 165 53797 
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. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Puerto Rico corporation that seeks to employ the beneficiary as its maintenance 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. The director denied the petition based on the determination that the 
petitioner failed to provide a job offer establishing that the beneficiary would be permanently employed in a 
managerial or executive capacity. 
On appeal, counsel disputes the director's findings and submits a brief in support of his arguments. 
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 1-140 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. 
The primary issue in this proceeding is whether the petitioner established that it would permanently employ 
the beneficiary in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj 1 lOl(a)(#)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
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(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. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. $ 1 10 1 (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. 
The record shows that the supporting documentation submitted by the petitioner along with its Form 1-140 did 
not include a letter from the petitioning entity describing the beneficiary's proposed job duties. Rather, the 
petitioner provided a brief non-technical job description found in Part 6, No. 3 of the Form 1-140 in which the 
petitioner stated the following: "[The beneficiary] is responsible for organizing daily maintenance jobs and 
equipment overhauls; coordinating tasks between mechanical, electrical and instrumentation departments' 
organization of the maintenance department; implementation of a preventive maintenance program; budgeting 
and control of maintenance expenditure." The petitioner also provided a letter from counsel dated March 9, 
2006, in which counsel supplemented the petitioner's description, adding that the beneficiary "holds a key 
managerial position . . . and exercises discretion over the day-to-day operations of this function and operates 
at a senior level with respect to the function managed." Although the petitioner also provided an 
organizational chart, the chart is dated March 3 1, 2001. As such, it is unclear whether the staffing structure 
illustrated in the chart conveys the organizational hierarchy that was in place in 2007 when the Form 1-140 
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was filed. Additionally, the chart does not clarify which subordinate positions are subject to the maintenance 
manager's supervision. 
On July 30, 2007, the director issued a request for additional evidence (WE) instructing the petitioner to 
provide a definitive statement describing the beneficiary's proposed job duties and the percentage of time that 
would be allotted to each duty. The petitioner was also asked to discuss the number and position titles of any 
employees that would be subordinate to the beneficiary, as well as brief job descriptions and educational 
levels of these employees. Additionally, the petitioner was asked to discuss who provides the products and 
services of the organization. 
In response, the petitioner provided a letter dated August 28, 2007 stating that the beneficiary supervises three 
engineers and claims that the beneficiary is at the top of the organizational hierarchy, being second in 
command from the top-level position. Two organizational charts were provided illustrating the hierarchies 
and the beneficiary's position within the petitioner's maintenance and operations departments. It is noted that 
the two charts are significantly different, depicting the beneficiary at two different levels within the 
departments and identifying two different sets of subordinate employees. While the petitioner has claimed 
that the beneficiary would be employed in the maintenance department, which depicts the beneficiary at the 
highest tier, counsel's letter does not clarify the connection between the maintenance and operations 
departments and what specific role the beneficiary would assume within the latter department. 
In addition, the petitioner provided a letter dated October 18,2004, which contained the following statements: 
[The beneficiary] will provide managerial oversight to the development and implementation 
of an annual and long-range maintenance plan, as well as the development of budgets and 
schedules to meet the plan. He will provide direction and leadership to all staff in 
implementing the plan in a safe and cost-effective manner, while ensuring that all activities 
are carried out with full consideration for safety of all employees including developing and 
carrying out a safety plan. [The beneficiary] fwther will provide managerial leadership to the 
development of, and ensure the implementation of a long-range and annual maintenance plan, 
while continuing to manage all activities to that budget. 
To accomplish these objectives, [the beneficiary] will direct and supervise the mechanical 
and electrical departments in complying with the maintenance plan and insuring that a 
preventative and contingency maintenance plan is being carried out in a safe and efficient 
manner. He will be charged with establishing a training and development program to 
maintain the skills of the workers. As [mlaintenance [mlanager, [the beneficiary] will direct 
the workforce in a manner that utilizes the maximum potential of each employee, insuring all 
maintenance activities are carried out in a prioritized and well-planned manner. Moreover, he 
will be charged with establishing and recommending improvements that will increase 
 . 
efficiency and decrease costs. Additionally, [the beneficiary] will plan and manage the 
annual maintenance shutdown to insure that costs and downtime are minimized. As 
[mlaintenance [mlanager, [he] will be charged with creating global study feasibility plan and 
facilitate assessment of results for site selection. He will provide global direction to the 
development and maintenance of the final protocol, study procedure documentation, and case 
report forms. As such, [he] will manage and direct the preparation of global budgeting and 
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financial planning including overall study cost, guidelines for site budgets and payment 
schedule as appropriate, and tracking and adjusting budget to meet study requirements. 
Furthermore, [the beneficiary] will be charged with presenting recommendations to executive 
leadership. Furthermore, he will be responsible for insuring accurate budgeting of agency 
costs for functional maintenance activities and manage overall departmental costs. He will 
directly supervise six degreed professionals, which consists of four [mlaintenance 
[s]upervisors and two [mlaintenance [cloordinators. [He] also will have the authority to hire 
and fire the employees he will supervise. Additionally, [he] will be responsible for project 
delegation, prioritization, and executing final approvals of all project work and will be 
responsible for planning their workloads, setting work goals, and assessing work 
performances. Moreover, me] will make recommendations concerning promotion and salary 
increases based on their performances. [The beneficiary] also will exercise wide latitude of 
[sic] discretionary decision-making in managing an essential function for [the petitioner]. 
Additionally, the petitioner supplemented the beneficiary's rCsumC with the following percentage breakdown 
of time the beneficiary would spend on his various responsibilities for the U.S. petitioner: 
General and day[-] to [-I day management: 3 5 % 
Support to senior and executive management: 20% 
Environmental and [slafety issues: 1 0% 
Long[-] and [sh]ort[-] term planning for continuous operation: 20% 
Maintenance and [ilnvestment budgeting and expenses: 10% 
Miscellaneous (reporting, SAP implementation[,] etc.): 5% 
On October 17, 2007, the director denied the petition, finding that the petitioner failed to provide a job offer 
with a current statement from an authorized official of the U.S. entity, conveying its intent to employ the 
beneficiary permanently in a managerial or executive capacity. 
On appeal, counsel asserts that the RFE did not expressly include a request for a full-time job offer from the 
petitioner to the beneficiary. Counsel asserts that the petitioner complied with the RFE as it was presented. 
While counsel is correct in that the director did not expressly request a written job offer, the regulation at 
8 C.F.R. 5 204.5(j)(3) is clear in requiring "a statement from an authorized official of the petitioning United 
States employer," and 8 C.F.R. 5 204.56)(5) further requires that the U.S. employer must furnish a job offer 
containing a clear description of the beneficiary's prospective job duties that establish that the beneficiary 
would be employed in a managerial or executive capacity. In the present matter, while the AAO 
acknowledges the October 2004 letter from the petitioner, this letter addresses the beneficiary's L-1A 
employment, which the petitioner sought by filing a separate nonimmigrant petition. The regulations are 
clear in requiring that a similar letter be submitted addressing the currently proposed permanent employment, 
which may be significantly different from the temporary employment previously sought, depending on any 
changes in the petitioner's stage of development and/or its organizational hierarchy. 
Additionally, while not expressly addressed in the director's decision, when examining the executive or 
managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of the proposed 
job duties. See 8 C.F.R. 5 204.5Cj)(5). The director indicated the significance of the beneficiary's job duties in 
the RFE, which instructed the petitioner to specifically identify the job duties and to assign the portion of time 
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the beneficiary would allot to each duty. A review of the petitioner's response to the RFE indicates that the 
petitioner did not comply with the director's express instructions. While the AAO acknowledges the job 
description provided in the October 2004 employment letter as well as the percentages assigned to the various 
job responsibilities that were added to the beneficiary's rCsumC, neither submission qualifies as an adequate 
response to the WE or the regulatory requirements specified above. More specifically, the October 2004 
letter provides a broad overview of the beneficiary's proposed employment, focusing primarily on job 
responsibilities aimed at achieving various job objectives. The purpose of the director's WE was to elicit 
more specific information regarding the beneficiary's proposed employment, as it is the actual duties that 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 
1989), afyd, 905 F.2d 41 (2d. Cir. 1990). The director also attempted to determine how the beneficiary's time 
will be allocated to various job duties that comprise his daily work schedule. Although the petitioner 
attempted to respond to the director's request by providing a percentage breakdown, the percentages were not 
assigned to specific tasks, but rather to general job responsibilities that fail to clarify how the beneficiary will 
meet his general job responsibilities. 
The AAO also reviewed the two organizational charts and the job descriptions attributed to the three 
individuals depicted as the beneficiary's subordinates. However, as previously noted, the petitioner has not 
explained the relationship between the two charts within the overall scheme of the petitioner's organizational 
hierarchy. Furthermore, the record lacks documentary evidence establishing that the employees claimed as 
the beneficiary's subordinates were actually employed by the petitioner at the time the Form 1-140 was filed. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In conclusion, the petitioner has failed to meet key regulatory requirements and has not provided sufficient 
information addressing the various inadequacies previously pointed out in the RFE. While the petitioner may 
be eligible for the immigration benefit sought, a determination regarding its eligibility cannot be made 
without proper information and documentation in support thereof. In the present matter, the petitioner has 
failed to provide the necessary information regarding the beneficiary's proposed daily job duties and has not 
provided sufficient documentation that would establish that the petitioner employs a sufficient support staff to 
relieve the beneficiary from having to primarily perform job duties of a non-qualifying nature. This latter 
element is particularly crucial in light of relevant statutory provisions and case law, which establish that 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 10 1 (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). Thus, while the 
petitioner has claimed that it employs a staff subordinate to the beneficiary and has a sales staff to sell its 
products and/or services, these claims are not corroborated with documentary evidence. See Matter of Sof$ci, 
22 I&N Dec. at 165. Accordingly, based on these adverse findings, the AAO cannot affirmatively conclude 
that the beneficiary would be employed in a managerial or executive capacity. 
Furthermore, the record does not support a finding of eligibility based on at least one additional ground that 
was not previously addressed in the director's decision. Specifically, 8 C.F.R. 5 204.5(j)(3)(i)(D) states that 
the petitioner must establish that it has been doing business for at least one year prior to filing the Form 1-140. 
The regulation at 8 C.F.R. 5 204.50)(2) states that doing business means "the regular, systematic, and continuous 
provision of goods andlor services by a firm, corporation, or other entity and does not include the mere presence 
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of an agent or office." In the present matter, the petitioner relies on its organizational structure and international 
presence as a means of establishmg that it is conducting business on a "regular, systematic, and continuous" 
basis. See id. However, as previously stated, the petitioner must corroborate its assertions of fact with solid 
documentary evidence. In the present matter, the petitioner has indicated that it is a producer and supplier of 
cement. However, it has not provided evidence of business activity to corroborate its claim. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afyd, 345 F.3d 683. 
Lastly, counsel makes a brief reference to the petitioner's current approved L-1 employment of the 
beneficiary. With regard to the beneficiary's L-1 nonimmigrant classification, it should be noted that, in 
general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny 
by Citizenship and Immigration Services (CIS) than nonimmigrant petitions. The AAO acknowledges that 
both the immigrant and nonimmigrant visa classifications rely on the same definitions of managerial and 
executive capacity. See 9 5 10 1 (a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1 10 1 (a)(44). Although the statutory 
definitions for managerial and executive capacity are the same, the question of overall eligibility requires a 
comprehensive review of all of the provisions, not just the definitions of managerial and executive capacity. 
There are significant differences between the nonimmigrant visa classification, which allows an alien to enter 
the United States temporarily for no more than seven years, and an immigrant visa petition, which permits an 
alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization 
as a United States citizen. Cj $8 204 and 214 of the Act, 8 U.S.C. $8 1154 and 1184; see also 
 316 of the 
Act, 8 U.S.C. 8 1427. 
In addition, the approval of a nonirnmigrant petition in no way guarantees that CIS will approve an immigrant 
petition filed on behalf of the same beneficiary. CIS denies many 1-140 immigrant petitions after approving 
prior nonimmigrant 1-129 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. Suva, 724 F. 
Supp. 1 103 (E.D.N.Y. 1989). The AAO is not required to approve applications or petitions where eligibility 
has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter 
of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest 
that CIS or any agency must 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). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimrnigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
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The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.