dismissed EB-1C Case: Manufacturing

identiwng data deleted to 
prevent clearly unwarmnleo 
inVasi4.m of wnal privacy 
PUBLIC COPY 
US. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
LIN 07 223 52930 APR 0 7 2010 
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 1 153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103,5(a)(l)(i). 
- 
Chief, Administrative Appeals Office 
Page 2 
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 Delaware limited liability company that seeks to employ the beneficiary as its chief 
executive officer (CEO). 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 two 
independent grounds of ineligibility: 1) the petitioner failed to establish that the beneficiary was employed 
abroad in a qualifying managerial or executive capacity; and 2) the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and points out that the petitioner uses subcontractors to 
provide installation-related services to its clients. 
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 two primary issues in this proceeding call for an analysis of the beneficiary's job duties. Specifically, the 
AAO will examine the record to determine whether the beneficiary was employed abroad and whether he 
would be employed in the United States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(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. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 9 1 10 l(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. 
At Part 6, Item 3 of the Form 1-140, the petitioner indicated that the beneficiary's proposed position would 
involve directing and coordinating the company, developing and implementing sales initiatives, directing the 
supervision of specifications and quality of each project, creating solutions for product applications, and 
establishing company goals and objectives. 
The petitioner also provided a combined organizational chart that illustrates the organizational hierarchies of 
the beneficiary's U.S. and foreign employers. The chart depicts the beneficiary and as the 
CEO and president of both entities, respectively. The U.S. portion of the chart shows a director of 
engineering and the sales manager for the North American region as the two direct subordinates of the CEO. 
The director of engineering is shown as overseeing one manufacturing and process control employee and one 
research and design employee. Although a quality engineering position is also included among the 
engineering director's subordinates, it appears that the position was not filled. The sales manager is shown as 
overseeing the work of one installation and service employee, subcontractor services, and product 
representatives. It is noted that the chart does not identify any subcontractor service providers or any product 
representatives. 
With regard to the foreign entity, the chart shows that the beneficiary directly oversees a general manager and 
a research and design director. The general manager is shown as overseeing one production employee, one 
administrative employee, and purchasing, which does not identify any employees. The research and design 
director is shown as overseeing SRED and subcontractor control. It is noted that the petitioner did not 
provide any information about the beneficiary's job duties with the foreign entity. 
On September 3, 2008, the director issued a request for additional evidence (WE) instructing the petitioner to 
provide, inter alia, a detailed description of the specific job duties the beneficiary performed during his 
employment abroad and those he would perform during his proposed employment with the U.S. entity. The 
petitioner was also asked to specify the percentage of time that was and would be attributed to each of the 
specified duties. 
In response, the petitioner offered a list of eleven job responsibilities associated with the beneficiary's 
proposed employment and assigned a percentage of time to each item in an effort to satisfy the director's 
request. As the director incorporated all eleven items in the denial, the AAO need not repeat this information 
in the present discussion. The petitioner also elaborated on the beneficiary's role as CEO by addressing the 
following five key focal elements of the beneficiary's job: strategy and growth plans, management review and 
support, sales strategy and planning, engineering, and production and subcontractor. 
With regard to the first element-strategy and growth plans-the petitioner claimed that the beneficiary 
develops and implements effective growth strategies, which includes developing business plans and setting 
sales targets for the fiscal year. The beneficiary also makes key business decisions, including the decision to 
shift the sales and manufacturing of the petitioner's products to the U.S. entity to defray freight costs and to 
increase sales. The foreign entity would then focus on research and development. 
Next, the petitioner addressed the beneficiary's role with respect to management review and support, claiming 
that the beneficiary holds a weekly conference call and has follow-up meetings with various departments 
throughout the week to monitor progress on key projects. The petitioner indicated that the beneficiary 
reviews the sales plan (to compare projections with actual progress) and monitors the status of production and 
shipping, invoicing, product developing, and customer feedback. 
With regard to sales strategy and planning, the petitioner stated that the beneficiary develops sales and 
marketing plans, works with the sales manager to implement those plans, monitors key projects to make sure 
all customer issues are resolved, and travels to customer sites in the United States, Canada, and Europe to 
review annual contracts, product designs and changes, and pricing and forecasts. The beneficiary also 
represents the petitioner at industry conferences and trade show events. 
The beneficiary's role in engineering and product development is to provide direction to ensure that the 
product design meets each customer's needs, which requires the beneficiary to verify applicable codes, review 
quality assurance guidelines, and make sure that the customer's requirements are implemented. 
Page 5 
Lastly, with regard to the beneficiary's role in "production and subcontractor," the beneficiary reviews 
production capabilities, order status, and capacity restraints. He then meets with managers to elicit their 
feedback and makes recommendations to ensure that the business objectives are met. 
In a decision dated February 4, 2009, the director denied the petition, concluding that the petitioner failed to 
submit sufficient evidence to establish that the beneficiary would primarily perform tasks within a qualifying 
managerial or executive capacity. 
On appeal, counsel challenges the director's attempt to distinguish the operation of a business and the 
management of an organization, asserting that the director failed to discern the two phrases. Counsel also 
contends that the director's finding that the petitioner lacks an organizational complexity imposes an 
unnecessary burden of having to establish a sizable support staff. These objections, however, are insufficient 
to overcome the grounds for denial. 
First, with regard to the difference between someone who operates a business versus someone who manages 
an organization, the AAO acknowledges that a distinction is not readily apparent and does require some 
clarification. It is important to note 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 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). It is further noted that operational tasks, or those daily tasks that are required 
for a business to function, are not deemed to be within a qualifying capacity. While the director's phrasing 
requires further explanation, it appears that the key distinction he intended to make was between someone 
who operates a business by primarily performing that entity's operational tasks and one who manages an 
organization either by overseeing the personnel who perform the operational tasks or by managing a 
department or an essential function within a business operation, keeping in mind that a function manager does 
not actually perform the tasks associated with the managed function. Thus, while someone who operates a 
business may be at the top of an entity's organizational hierarchy and is likely to be that entity's top-level 
employee with significant decision-making authority, it is possible for that person to spend the primary 
portion of his or her time performing daily operational tasks rather than primarily managerial or executive 
ones. 
Counsel properly points out that a petitioner does not have to maintain a sizable support staff to employ 
someone who primarily performs tasks within a managerial or executive capacity. However, in reviewing the 
relevance of the number of employees a petitioner has, federal courts have generally agreed that USCIS "may 
properly consider an organization's small size as one factor in assessing whether its operations are substantial 
enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d 13 13, 
13 16 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); 
Fedin Bros. Co. v. Sava, 905 F.2d 4 1, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d 25, 29 (D.D.C. 2003). In other words, the petitioner must submit sufficient evidence to establish 
that its staffing at the time the Form 1-140 is filed is sufficient to relieve the beneficiary from having to 
perform primarily operational, non-qualifying tasks. Contrary to counsel's understanding, mere consideration 
of the petitioner's staffing at the time of filing does not amount to a staffing requirement. Rather, it is a way 
for the director to gauge the extent to which the petitioner is capable of employing the beneficiary in a 
primarily managerial or executive capacity. If the petitioner cannot function without the beneficiary's daily 
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performance of non-qualifying tasks, it is reasonable for the director to question of whether that petitioner is 
adequately staffed. 
In the present matter, the petitioner has not provided any evidence to show exactly whom it employed at the 
time of filing. Despite the petitioner's submission of an organizational chart, the information in the chart is 
merely an extension of the petitioner's claim. The chart itself is not evidence of whom the petitioner 
employed at the time of filing. Moreover, the chart shows a total of seven employees as part of the 
petitioner's hierarchy, including the beneficiary and president. However, the petitioner's Form 1-140 
indicates that it employed only four individuals at the time of filing. 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 
petitioner's submissions include its 2006 IRS Form 1065 showing that it paid $89,163 in salaries and wages, 
the petitioner's Form 1-140 was filed in 2007. A document that reflects wages paid in 2006 is not relevant for 
the purpose of establishing the petitioner's eligibility at the time of filing. See Matter of Katigbak, 14 I&N 
Dec. 45,49 (Comm. 1971). 
Additionally, in order to establish that the beneficiary would be employed in a managerial or executive 
capacity, the petitioner must provide a detailed description of the beneficiary's proposed job duties. See 
8 C.F.R. § 204.5(j)(5). Precedent case law has firmly established that the actual duties themselves reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), aff, 
905 F.2d 41 (2d. Cir. 1990). As such, merely reciting the beneficiary's vague job responsibilities or broadly- 
cast business objectives is not sufficient. 
In the present matter, the petitioner does not provide a detailed description of specific tasks with a time 
constraint quantifying the percentage of the beneficiary's time that would be allocated to each task. For 
instance, the petitioner stated that 30% of the beneficiary's time would be allotted to providing leadership in 
the development of goals and the strategies that would help the petitioner achieve those goals. While this 
broad responsibility indicates that the beneficiary has discretionary authority over the company's direction, 
there is no meaningful understanding of the specific daily tasks the beneficiary would undertake in his effort 
to set goals and formulate corresponding strategies. The petitioner's discussion of a strategy and growth plan, 
while meant to elaborate on the beneficiary's job duties, merely elaborates on the types of discretionary 
decisions he makes, but does little to shed light on the specific underlying tasks the beneficiary carries out 
during the regular course of his work day. Similarly, while the petitioner allotted another 30% of the 
beneficiary's time to developing priority plans, performance evaluations, management controls, and critical 
success factors, it is unclear what specific duties fall within this broad range of general job responsibilities. 
Despite the petitioner's attempt to elaborate on this set of responsibilities by claiming that the beneficiary 
would chair weekly conference calls and hold follow-up meetings throughout the week, there were no time 
constraints for these conferences and meetings. 
Moreover, 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 CraB of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). As previously noted, the 
petitioner failed to provide documentary evidence to establish whom it employed at the time the Form 1-140 
was filed. Therefore, the AAO cannot determine whether it is reasonable for the petitioner to allocate 30% of 
the beneficiary's time to interacting with a staff whose existence has not been properly documented. In other 
Page 7 
words, since a significant portion of the beneficiary's time would be spent monitoring the performance of 
others through meetings and conferences, the need to provide evidence of these subordinate employees 
becomes even more critical. Therefore, despite counsel's assertion that the beneficiary is not an engineer and 
does not contribute to the designing of fuel systems, the record does not contain evidence to establish who 
actually does carry out these operational, albeit essential, tasks that are necessary as a means of providing the 
petitioner's stream of revenue. 
In light of the deficiencies described above, the AAO cannot conclude that the petitioner provided sufficient 
evidence to support the claim that the beneficiary would be employed in the United States in a qualifying 
managerial or executive capacity. Furthermore, while the director expressly instructed the petitioner to 
provide a detailed description of the job duties the beneficiary performed during his employment abroad, the 
petitioner did not comply with the director's request. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). As the petitioner 
failed to provide the requested information, which directly pertains to the issue of the petitioner's eligibility, 
the AAO cannot conclude that the beneficiary was employed abroad in a managerial or executive capacity. 
Therefore, based on the two independent conclusions discussed herein, the instant petition cannot be 
approved. 
Lastly, service records show the petitioner's previously approved L-1 employment of the beneficiary. With 
regard to the beneficiary's L-1 nonimmigrant classification, it should be noted that each nonimmigrant and 
immigrant petition is a separate record of proceeding with a separate burden of proof; each petition must 
stand on its own individual merits. USCIS is not required to assume the burden of searching through 
previously provided evidence submitted in support of other petitions to determine the approvability of the 
petition at hand in the present matter. The prior nonimmigrant approvals do not preclude USCIS from 
denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that USCIS will 
approve an immigrant petition filed on behalf of the same beneficiary. USCIS 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. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. 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 USCIS 
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 nonimmigrant 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). 
Page 8 
Accordingly, 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. fj 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.