dismissed EB-1C Case: Management

DATE: 
INRE: 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
MAR 022012 OFFICE: NEBRASKA SERVICE CENTER 
Petitioner: 
Beneficiary: 
U.S. Department of Homeland 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)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a multinational corporation that seeks to employ the beneficiary as its senior development 
manager. Accordingly, the petitioner endeavors 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. 
In support of the Form 1-140 the petitioner submitted a statement dated June 19, 2009, which included 
relevant information regarding the petitioner's eligibility for the immigration benefit sought as well as 
descriptions of the beneficiary's foreign and proposed employment. The petitioner also provided the financial 
and corporate documents establishing the existence of a qualifying relationship and its ability to pay. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for additional evidence (RFE) dated December 16, 2009 informing the 
petitioner of various evidentiary deficiencies. The director instructed the petitioner to provide a list of the 
beneficiary's job duties with the foreign entity and to assign a time allocation to each job duty on the list. The 
petitioner was also asked to provide the former employer's organizational chart that corresponds with the 
beneficiary's employment abroad, naming all departments and teams as well as the names and job 
descriptions of the beneficiary's immediate supervisor and subordinate employees. 
The petitioner's response included a January 22, 2010 statement from counsel, which contained the requested 
information concerning the beneficiary's foreign job duties. The petitioner also included a copy of the 
requested organizational chart. 
The director reviewed the submitted documents and concluded that the beneficiary was not employed abroad 
in a qualifying managerial or executive capacity. The director determined that the primary portion of the 
beneficiary's job duties in his position with the foreign entity consisted of non-qualifying operational tasks. 
The director therefore issued a decision dated February 18, 2010 denying the petition. 
On appeal, counsel submits a brief disputing the director's denial. Counsel contends that the director placed 
undue emphasis on the beneficiary's position within the foreign entity's organizational hierarchy and his lack 
of subordinate employees. Counsel further asserts that the beneficiary assumed the role of a function 
manager, which did not require traditional supervisory job duties. 
The AAO finds that counsel's arguments are not persuasive and fail to overcome the director's denial. The 
petitioner's submissions have been reviewed and all relevant documentation that pertains directly to the key 
issue in this matter will be fully addressed in the discussion below. 
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)(1)(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 to be addressed in this proceeding is the beneficiary's employment capacity in his prior 
position with the foreign entity. Specifically, the AAO will examine the record to determine whether the 
evidence shows that the beneficiary was employed abroad in a qualifYing managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. § 1 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization III 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. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.c. § 1 101 (a)(44)(B), provides: 
Page 4 
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. 
In exammmg the executive or managerial capacity of the beneficiary, the AAO will look first to the 
description of the job duties of the position in question. See 8 C.F.R. § 204.5(j)(5). A detailed job description 
often carries essential information about the beneficiary's job duties and the amount of time the beneficiary 
allocates to the job duties that are qualifying versus those that are not. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or 
executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary performed or 
would perform are only incidental to the position in question. 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 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Counsel states that the beneficiary was a function rather than a personnel manager during his employment 
with the foreign entity. 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 101(a)(44)(A)(ii) of the Act, 8 U.S.c. § 1 101 (a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary 
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 addition, 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. 
In consideration of the claim that the beneficiary's position abroad was that of a function manager, the fact 
that the beneficiary did not have subordinate employees is reasonable, as counsel suggests. The description 
of the beneficiary'S job duties during his employment abroad, however, does not establish that the 
beneficiary's role was limited to merely managing an essential function. The job description divided the 
beneficiary's work cycle into four phases-the design phase, the software engineering phase, the quality 
assurance/documentationleducationlclean-up phase, and the post-release phase. On appeal, counsel specifies 
the proportion of the full cycle that was allocated to each phase. She indicates that the first phase lasted 3-4 
Page 5 
months, the second phase lasted 6-8 months, and the third and fourth phases each lasted 2-3 months so that 
the duration of one full four-phase cycle could range from 13 months as the shortest cycle to 18 months as the 
longest cycle. 
In the ftrst phase, the record shows that during a typical work week the beneftciary spent 32-35 hours 
conducting research and writing designs and another 4-10 hours on miscellaneous tasks, such as researching 
software bugs, providing customer support, and carrying out sales and engineering tasks. Based on these time 
allocations, the AAO ftnds that the primary portion of the beneftciary's work week during the design phase of 
a cycle was spent performing tasks necessary to produce a product or to provide service. During the software 
engineering phase, which is the longest of the four phases, the beneftciary spent 30 hours conducting 
research, reworking design plans, and writing second-phase designs; he spent another 4-10 hours on the same 
miscellaneous tasks that he performed during the ftrst phase. Similar to the ftrst phase assessment, an 
examination of the typical work week during the second phase of a cycle also shows that the primary portion 
of the beneftciary's time was allocated to tasks necessary to produce a product or to provide services. 
Although the AAO ftnds that the beneftciary allocated less of his time to the non-qualifying tasks during the 
third and fourth phases than during the ftrst two phases, the record nevertheless shows that of the 35-48 
weekly hours during the third phase, the beneftciary may have allocated up to 25 hours of his time to non­
qualifying tasks such as product testing and tasks that are grouped together as miscellaneous. Similarly, 
during the fourth phase of the cycle, the beneftciary may have allocated up to 28 hours of a possible 37 hour 
work week to such non-qualifying tasks as preparing marketing requirements and carrying out research, 
customer support, sales, and engineering duties. 
In summary, the job description that was provided in response to the RFE indicates that the beneftciary 
allocated the primary portion of his time to the performance of tasks that are indicative of providing services 
that are directly associated with generating the foreign entity's revenue. As previously stated, 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 International, 19 I&N Dec. at 604. Therefore, despite the fact that the beneftciary 
performed job duties that were themselves essential and while a certain function management component was 
directly built into the beneftciary's position with the foreign entity, the record indicates that the primary 
portion of the beneftciary's time was allocated to carrying out the tasks of a function rather than managing 
that function. Accordingly, the AAO ftnds that the petitioner failed to establish that the beneftciary was 
employed abroad in a qualifying managerial or executive capacity. On the basis of this ftnding, the instant 
petition cannot be approved. 
In visa petition proceedings, the burden of proving eligibility for the beneftt sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.