dismissed EB-1C Case: Manufacturing

(b)(6)
DATE: 
JAN 1 6 2014 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S . Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachu setts Ave. N.W., MS 2090 
Washington, DC 20529-20 90 
U.S. Citizenship 
and Immigration 
Services 
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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
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. 
Thank you, 
~n Rosenberg 
Lnief , Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa pet1t10n was denied by the Director, Texas Service Center. The 
Administrative Appeals Office (AAO) dismissed the petitioner's subsequent appeal. The matter is now before 
the AAO on a combined motion to reopen and reconsider. The AAO will grant the petitioner's motion to 
reconsider and affirm its previous decision. 
The petitioner is engaged in stainless steel pipe and tubing manufacturing and claims to be a subsidiary of 
It seeks to employ the beneficiary as its sales 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. 
The director denied the petition on August 27, 2010, concluding that the petitioner failed to establish that the 
beneficiary's proposed employment with the U.S. entity would be within a qualifying managerial or executive 
capacity. The petitioner appealed the director's decision to the AAO, which dismissed the appeal on October 
9, 2012 based on the same adverse finding. The AAO further found that the record did not include sufficient 
evidence to corroborate the claimed parent-subsidiary relationship between the beneficiary's last foreign 
employer and the petitioning company. 
The matter is now before the AAO again on a combined motion to reopen and motion to reconsider. Counsel 
asserts that the AAO's decision to dismiss the appeal was incorrect as a matter of law as the AAO failed to 
consider the totality of the evidence submitted and ignored relevant documentation that establishes that the 
beneficiary acts as a function manager and is relieved from performing non-qualifying duties. Counsel further 
contends that the petitioner misapplied the law pertaining to function managers and failed to cite to any legal 
authority in support of its finding that a function manager cannot perform "operational functions." 
With respect to the AAO's finding that the petitioner submitted insufficient evidence to establish its claimed 
qualifying relationship with the foreign entity, counsel asserts that the AAO did not have the authority to deny 
the petition on this basis as the petitioner was not given notice of any deficiencies in a request for evidence 
pursuant to 8 C.P.R. § 103.2(b )(8). The petitioner submits copies of previously submitted evidence as well as 
additional evidence pertaining to its qualifying relationship with the foreign entity. 
I. TheLaw 
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): 
* * * 
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(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. 
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 m 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 
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NON-PRECEDENT DECISION 
supervisor's supervisory duties unless the employees supervised are 
professional. 
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. 
II. Employment in a Managerial or Executive Capacity 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the petitioner's 
description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly supports the pivotal role 
of a clearly defined job description, as the actual duties themselves reveal the true nature of the 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); see 
also 8 C.F.R. § 204.5(j)(5). USCIS reviews the totality of the record, which includes not only the beneficiary 's 
job description, but also takes into account the nature of the petitioner's business, the employment and 
remuneration of employees, as well as the job descriptions of the beneficiary's subordinates, if any, and any 
other facts contributing to a complete understanding of a beneficiary's actual role within a given entity. 
The petitioner submitted a position description consisting of eight duties in its initial letter dated October 14, 
2009, and subsequently added the percentage of time allocated to each duty in response to the director's request 
for evidence (RFE). The petitioner described the beneficiary's duties as follows: 
1. Managing all technical and commercial aspects of the United States sales operations, 
including discretionary authority on matters relating to the development of new and 
existing customers; (20%) 
2. Negotiating sales agreements with North American customers; (15%) 
3. Making personnel recommendations to the general manager of the Houston office 
concerning the hiring and dismissal of any sales employees, should such be necessary; 
(2%) 
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NON-PRECEDENT DECISION 
4. Planning and managing sales functions, including organizing presentations, meetings, 
conferences, and participating in trade shows and fairs; (15%) 
5. Ensuring that all contractual conditions and requirements are met to the customers' 
satisfaction; (13%) 
6. Overseeing the timely dispatch of goods; (10%) 
7. Preparing and presenting written and oral reports to customers and to senior management 
as necessary; (10%) and 
8. Generating technical proposals and cost estimates for sales, including new products based 
on customer demand and feasibility studies. (15%) 
The petitioner stated that the purpose of the beneficiary's transfer to the United States was to "assist [the 
foreign company] in its goal of increasing market share in the United States." The petitioner also stated that 
"because the sales operations in the United States are still somewhat nascent, [the beneficiary] does not directly 
supervise any staff in the United States, but he is responsible for the daily decisions and work efforts required 
to grow the sales of [the foreign company 's] products in the United States." The petitioner added that the 
beneficiary "exercises discretion over the day-to-day operations of every aspect of the sales operation of [the 
petitioner], which includes the creation of markets, the identification of customers, and ultimately the 
development of a sales force." 
The petitioner further noted that the planned expansion of the company had been suspended due to economic 
conditions, but that the beneficiary maintains "operational supervisory authority over two Swiss employees and 
one employee in the Ukraine ." The petitioner indicated that the Swiss employees include: (1) a Back Office 
Coordinator and SAP Expert, who is responsible for all activities related to the documentation and SAP system 
such as order entry into SAP, export documentation support, order confirmations, order expediting, and 
international shipping documentation; and (2) a Back Office Supervisor who is responsible for all invoicing 
activities. In addition , the petitioner indicated that the beneficiary indirectly supervises a Back Office 
Production Coordinator based in the Ukraine office who is responsible for coordinating communications and 
production between the sales organization and the company's mill in Ukraine. Finally, the petitioner noted that 
there is a Production Process Coordinator in the Swiss office who coordinates mill production with customer 
orders, integrates orders with the production process, provides feedback to the managers, and tracks raw 
material availability and capacity utilization at the factory level. 
As emphasized by counsel on appeal, the petitioner's response to the RFE also included supporting evidence 
and examples of the beneficiary's work which was not discussed in the service center director's or AAO's 
decisions. This evidence included: notes from a meeting with in which the beneficiary was one of 
nine employees of the petitioner's group present to discuss current and future orders with the client's president 
and purchase manager; e-mail correspondence b~tween the beneficiary and J ; purchasing manager 
in which the beneficiary explained the gap between the petitioner's quoted prices in comparison to its 
competitors'; e-mail correspondence between the beneficiary and client in which the 
beneficiary was asked to respond to customer concerns regarding the technical quality of the products 
purchased; 2010 annual sales plans and strategies created by the beneficiary; weekly sales reports in which the 
(b)(6)
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Page 6 
beneficiary identified new orders , major quotes submitted, customers visited, and problems reported by 
customers; copies of price quotes signed by the beneficiary; and the beneficiary's e-mail correspondence with a 
potential client in which he was seeking approval for the petitioner as a qualified supplier and planning a visit 
to the client's site; 
Finally, the petitioner submitted internal correspondence between the beneficiary and his dotted-line 
subordinates in Switzerland . The back office employee advised the beneficiary which orders are produced and 
ready to be shipped and asked advice on the timing of shipment, as well as providing information regarding 
orders that are delayed. In another exchange, the beneficiary advised the invoicing employee of the prices that 
should appear on the invoice issued to the customer. Finally, the beneficiary forwarded clients' orders to the 
Swiss office for entry into SAP and processing by the back office staff. 
Based on the petitioner's description of the beneficiary's duties, the nature of the U.S. office, the staffing of the 
company, and the duties attributed to the beneficiary's indirect overseas subordinates, the AAO concluded that 
the evidence did not establish that the beneficiary would be employed in a primarily managerial or executive 
capacity. The AAO also concluded that the evidence did not support the petitioner's specific claim that the 
beneficiary qualifies as a function manager based on his management of the North American sales function. 
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 10l(a)(44)(A)(ii) of the Act, 8 U.S.C. § 110l(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 detailed description of 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. § 214.2(1)(3)(ii). 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. 
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 lOl(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 'l., 19 I&N Dec. 593, 604 (Comm'r 1988). 
Accordingly , it is the petitioner's burden to establish that a majority of the day-to-day administrative or non­
managerial tasks of the function are performed by someone other than the beneficiary. /d. If the beneficiary is 
"primarily" performing non-managerial tasks, then it logically follows that he could not also "primarily" 
perform managerial or executive duties. Therefore, the petitioner must still demonstrate that other employees 
carry out the functions of the organization , even though those employees may not be directly under the 
function manager's supervision. In reviewing the totality of the record, the AAO will also review other factors 
such as the beneficiary's position within the organizational hierarchy , the depth of the petitioner's 
organizational structure, the scope of the beneficiary's authority and its impact on the petitioner 's operations, 
and the indirect supervision of employees within the scope of the function managed. 
(b)(6)
NON-PRECEDENT DECISION 
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In this case, the beneficiary is the sales manager and the sole sales employee employed within the petitioner's 
two-person U.S. sales office. The other employee is a general manager, who, according to the petitioner, has 
no responsibilities related to sales. The beneficiary will not directly or indirectly supervise any sales staff 
located in the United States or overseas. In addition, the petitioner indicates that the beneficiary personally 
negotiates sales agreements, generates technical proposals and cost estimates for sales, organizes meetings and 
presentations, prepares and presents reports for customers, duties which are directly related to selling the 
petitioner's products and account for 55% of the beneficiary's time. The petitioner has not explained how any 
of these duties fall within the statutory definition of "managerial capacity" or stated whether or how the 
overseas "back office" employees support him in these functions. As these duties account for more than half 
of the beneficiary's time, the petitioner has not established that the beneficiary is primarily employed in a 
managerial capacity. 
The AAO acknowledges that the foreign employees do contribute to the sales operations in the areas of 
invoicing, communications with the manufacturing facility, order expediting and fulfillment, and shipment of 
completed orders to their destinations. Therefore, such employees appear to relieve the beneficiary of non­
qualifying duties associated with his responsibilities for overseeing the commercial and technical aspects of the 
sales operation, overseeing the timely dispatch of goods, and may assist in ensuring that all contractual 
conditions and requirements are met to the customers' satisfaction. 
However, based on the totality of the evidence submitted, the beneficiary is personally responsible for 
providing quotes and proposals, visiting existing and potential customers, negotiating prices and terms in an 
effort to qualify the petitioner as a supplier, responding to customer complaints regarding product quality, 
creating sales reports and performing essentially all of the customer-facing duties before, during and after 
sales. While the sales function is technical and complex due to the nature of the products the petitioner sells, 
the petitioner has not established how the beneficiary's direct responsibility for sales rises to the level of 
"managing" the sales function for the petitioner's sales office, given that he is the only sales employee in the 
organization responsible for the region. 
Performing non-qualifying tasks necessary to produce a product or service will not automatically disqualify the 
beneficiary as long as those tasks are not the majority of the beneficiary's duties. However, the petitioner still 
has the burden of establishing that the beneficiary is "primarily" performing managerial or executive duties. 
Section lOl(a)( 44) of the Act. Whether the beneficiary is a "function" manager turns in part on whether the 
petitioner has sustained its burden of proving that his duties are "primarily" managerial. 
The petitioner concedes that its sales organization in the United States is at the "nascent" stage and relies solely 
on the beneficiary to expand the company's sales and customer base. The record supports a finding that the 
beneficiary has some decision-making authority over the sales function and develops sales strategies, but he 
also sells the petitioner's products and performs research, proposal writing and other non-qualifying duties 
associated with directly selling the products and seeking out new customers . The petitioner established that he 
oversees foreign staff responsible for coordinating the fulfillment of sales orders once he has submitted them 
(b)(6)
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for processing, but the petitioner has not shown how these employees relieve the beneficiary from selling the 
petitioner's products , nor has it show that these dotted-line supervisory duties require the majority of his time. 
Accordingly, the AAO will affirm its determination that the beneficiary will allocate more than half of his time 
to duties that cannot be considered qualifying managerial duties and therefore cannot be deemed to be 
"primarily" managing the sales function . 
Counsel asserts that the AAO did not adequately explain why a sales manager could not qualify as a function 
manager. The AAO has not and will not arrive at any blanket conclusions regarding the occupation of "sales 
manager" in relation to the statutory definition of "managerial capacity," as such determinations must be made 
on a case-by-case basis and are dependent on the evidence submitted in support of an individual petition. Our 
determination that the sales manager position offered to this beneficiary does not meet the statutory 
requirements is based on an assessment of the beneficiary's job description, the nature of petitioner's business, 
the availability of direct or indirect employees to actually perform sales duties , and the petitioner's examples of 
the beneficiary's work. 
Based on the foregoing , the petitioner has not establi shed that it will employ the beneficiary in a qualifying 
managerial capacity. 
B. Qualifying Relationship 
The remaining issue addressed in the AAO's decision was whether the petitioner established that it has a 
qualifying relationship with the beneficiary's foreign employer , the petitioner's claimed parent company. The 
AAO found that the petitioner's submission of an annual report and tax return identifying the parent-subsidiary 
relationship was insufficient. 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, I 043 (E.D. Cal. 
2001), ajj'd. 345 F.3d 683 (9th Cir. 2003). 
On motion, the petitioner has submitted sufficient evidence to document its parent-subsidiary relationship with 
the foreign entity. The AAO will withdraw its adverse determination with respect to this issue. 
III. Conclusion 
The petition will remain denied based on the petitioner's failure to establish that it will employ the beneficiary 
in a qualifying managerial capacity. 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 ofOti ende, 26 
l&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The AAO's decision dated October 9, 2012 is affirmed.