dismissed EB-1C Case: Marketing And Public Relations

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
'PUBLIC COpy 
LS. Depal'tml!nt of Homeland SI!Ctll'ity 
U,S. Citi/Cl1Ship and Immig.ration Scrvic<:s 
Administrative' Appcals ()nicl~ (;\:\0) 
:>0 Vlassachuscth Ayc .. N,W .. MS 2ilY() 
\Vasllill~l()n, DC 20529-2090 
U.S. Citizenship 
and Imlnigration 
Services 
DATE: SEP J 0 2011 OFFICE: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant 
to Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(I)(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 mif1:ht 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)(I)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
cerry Rhew 
uChief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 Florida corporation that seeks to employ the beneficiary as its vice president of 
marketing and public relations. Accordingly, the petitioner endeavors to classifY the beneficiary as an 
employment-based immigrant pursuant to section 203(b)( I )(C) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1 I 53(b)(1)(C), as a multinational executive or manager. 
The director denied the petition based on the finding that 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 submits a brief in support of his arguments. 
I. The Law 
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 I 
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 Unjtt~d 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)( I )(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. 
Page 3 
Section I 01 (a)(44)(A) of the Act, 8 U.S.C. § IIOI(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 IOI(a)(44)(8) ofthe Act, 8 U.S.c. § I 101 (a)(44)(8), 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. Managerial Capacity 
The primary issue in this proceeding is whether the petitioner established that the beneficiary's proposed 
employment with the u.S. entity would primarily consist of job duties that are within a qualifying 
managerial or executive capacity. 
Page 4 
In a statement submitted in support of the Form 1-140, the petitioner stated that the beneficiary would be 
employed in a managerial capacity and that her primary focus would be managing the essential marketing 
function. The petitioner provided the following list of job duties to describe the beneficiary's proposed 
employment with the u.s. entity: 
It Morning Meeting: A mOl11ing meeting with Bruce Stewart to discuss the previous day's 
activities, current events in progress, current day activity requirements, budgets and 
financial status. 
• Media Relations: A courtesy phone-call to a rotating selection of radio and press media 
is made on a daily basis to maintain contact with the media, [sic] to ascertain changes in 
media contacts, to comment on current media articles relating to education and training[,] 
and to suggest new media articles and angles. 
• Media Networking: A face-to-face networking meeting is held on a daily basis with a 
rotating selection of radio and press media to maintain personal contact. 
• Publicity Preparation: Based upon feedback from meetings and phone-conversations 
with the media, [the beneficiary] develops news-story angles for discussion at morning 
meetings [and] prepares media articles, feature items, business briefs on new clients and 
public interest items for publication. 
• Market Research: Conducts market research in order to establish possible demographic 
changes in those attending the courses, surveys to establish student needs and objectives 
in attending the course, establishes pre-course and post-course perceptions and perception 
shifts and develops marketing, advertising and publicity vehicles to bring about desired 
perception and awareness shifts, using a proprietary perception shift achievement 
methodology .... 
• License Liaison: Weekly phone and email meetings with the licensees in England and 
Australia on marketing, advertising and public relations activities. These meetings are 
primarily concerned with sharing information on changing demographics, perceptions, 
trends and public issues relating to education, training and literacy. 
• Internationalism: [The beneficiary] has extensive travel experience. . .. She is fluent 
in English and Afrikaans and has conversational skills in German, Dutch and Flemish. 
• Course Set-up: Once the training course date, time, format and location are established, 
[the beneficiary] makes the necessary arrangements with regard to such location 
bookings and travel arrangements as may be required. In the case of corporate clients, 
these arrangements are usually handled by the client. 
Page 5 
• Course Materials: Once the training course has been booked and the course content 
finalized ... the preparation, sourcing, design, printing and packing of course materials is 
conducted by [the beneficiary]. 
• Course Instruction: The presentation of courses is a combination of teaching, coaching 
and counseling. . .. In large courses, comprising more than 30 managers and executives, 
[the beneficiary] serves as assistant instructor to Bruce Stewart. 
• Sub-Contractors: [The petitioner] makes extensive use of sub-contractors for services 
such as website design [and] hosting, advertising and design, printing, travel, legal and 
financial. Prospective sub-contractors present their credentials and proposals to Bruce 
[Stewart] and [to the beneficiary]. Once appointed, they are briefed and their 
performance is monitored and evaluated monthly by Bruce Stewart or [by the 
beneficiary ]. 
• Media Liaison: [The beneficiary] regularly arranges media-meetings and media­
briefings for Bruce Stewart to meet the media. 
• Advertising & Marketing: After discussion and agreement at the morning meeting, [the 
beneficiary] oversees the actual implementation of marketing, advertising [and] publicity 
campaigns. 
• Corporate Citizenship and Networking: [The beneficiary] has devoted considerable 
time to supporting community activities in Charlotte. [She] also volunteers her time and 
expertise to fund-raising .... 
• Overall Corporate Management: As public relations [and] marketing director of the 
U[.]S[.] local subsidiary, [the beneficiary] has the overall responsibility of presenting the 
public image of the business to its various target audiences. 
The petitioner focused on the beneficiary's sizable contribution of time and effort to the growth and 
profitability of the petitioning entity as well as her knowledge and experience in the processes and 
procedures of the petitioning entity's business. 
A similar job description was provided with regard to the beneficiary's employment abroad. 
On August 3, 20 I 0, the director issued a request for additional evidence (RFE) instructing the petitioner 
to provide further documentation to assist U.S. Citizenship and Immigration Services (USCIS) in 
determining the nature of the beneficiary's employment capacity in the proposed position with the U.S. 
entity. Specifically, the petitioner was instructed to provide a list of the beneficiary's job duties and the 
percentage of time she would allocate to each item listed. The director also asked the petitioner to list the 
position titles and job duties of any managerial or supervisory employees who report to the beneficiary or 
in the alternate to specity what essential function the beneficiary managers. With regard to any 
contractors the petitioner may have used, the director asked for copies of IRS Form 1099s or any other 
proof of payment to such third parties. 
Page 6 
In response, counsel provided an undated statement in which he refers to the director's request to assign 
time constraints to the beneficiary's proposed job duties as burdensome and further asserts that the 
petitioner cannot comply with the director's request due to the variety of tasks the beneficiary performs 
and due to the fact that no two days are alike depending on the needs of the company on any given day. 
Counsel noted that technological progress allows the beneficiary to perform a variety of administrative 
tasks with greater ease by using email, cell phone, text messaging and the like to maintain a "virtual 
office." The petitioner resubmitted the original job description in an effort to comply with the director's 
request. As for any additional employees, counsel referred to the beneficiary's use of "scouts" who refer 
potential clients to the beneficiary and then get paid on a commission basis for any referral that results in 
a business contract. Counsel also stated that the petitioner occasionally uses "casual workers" to carry out 
various administrative duties. Counsel provided a list of sub-contractors and casual workers, which 
named a CPA, an attorney, a graphic designer, four marketing scouts, a photographer, a website 
videographer, and four clerical workers. 
The petitioner also a chart illustrating its organizational hierarchy, which depicts the company's 
president, as head of the organization with the beneficiary in the position directly below 
him. The beneficiary and _ are each shown as overseeing certain sub-contractors. Sub­
contractors that are under the beneficiary's supervision include the printing, direct mail, web design, 
shipping, office cleaning, and travel companies as well as one individual who provides design services. 
The chart also shows the beneficiary's direct involvement in joint venture alliance with various 
educational institutions, as well as her continued oversight over employees who work for the petitioner's 
foreign affiliates in the United Kingdom, Australia, and Canada. 
On October 27, 2010, the director issued a decision denying the petition based on the finding that the 
petitioner failed to establish that the beneficiary's proposed position with the U.S. entity would be within 
a qualifying managerial or executive capacity. Although the director noted what he determined to be 
inconsistencies between the information that was initially submitted with regard to the beneficiary's 
subordinates and information that was later submitted in response to the RFE, the AAO finds that the 
director's assessment was inaccurate, as some of the information discussed in the director's decision was 
clearly in regard to the beneficiary's employment abroad, not her proposed employment with the U.S. 
entity. 
Regardless, the director properly pointed out that the petitioner failed to provide the requested percentage 
breakdown showing how the beneficiary's time would be allocated. It is noted that failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. § 103.2(b)(l4). The director also noted that the beneficiary would assume a number of daily 
operational tasks in her position with the U.S. petitioner, thus further indicating that the beneficiary would 
not primarily perform job duties of a multinational manager or executive. 
On appeal, counsel asserts that the Immigration Act of 1990 changes that went into effect on October 1, 
1991 included provisions for managers who would not oversee the work of other personnel, but who 
would instead be charged with the management (If a function. On the basis of this statement, counsel 
asserts that the beneficiary assumes the role of a function manager, managing the marketing and public 
relations function of the enterprise. Counsel also points out that the beneficiary's top placement with the 
Page 7 
petitioner's organizational hierarchy, her discretionary authority, her policy- and goal-setting 
responsibilities, and her continued interaction with executive-level clients all indicate that the proposed 
employment is within a managerial capacity. 
After conducting a comprehensive review of the record, with emphasis on the petitioner's failure to break 
down the job description by percentages showing how the beneficiary's time would be allocated, the AAO 
finds that counsel's assertions are not persuasive in overcoming the director's decision. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). The AAO will then consider this 
information in light of the petitioner's organizational hierarchy, the beneficiary's position therein, and the 
petitioner's overall ability to relieve the beneficiary from having to primarily perform the daily 
operational tasks. In the present matter, while the AAO does not dispute that the beneficiary has a 
heightened degree of discretionary authority with respect to the function she manages and while she 
clearly assumes a top-level position within the petitioning organization, these factors do not form a 
sufficient basis upon which to determine that the beneficiary primarily performs tasks within a qualifying 
capacity. 
First, whether the beneficiary is a managerial or executive employee turns on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial or executive. See sections 
10 I (a)( 44)(A) and (8) of the Act. Here, despite the director's request, the petitioner failed to document 
what proportion of the beneficiary's duties would be managerial functions and what proportion would be 
non-managerial. The petitioner lists the beneficiary's duties as including both managerial and 
administrative or operational tasks, but fails to quantify the time the beneficiary spends on them. This 
failure of documentation is important because several of the beneficiary's daily tasks do not fall directly 
under traditional managerial duties as defined in the statute. For this reason, the AAO cannot determine 
whether the beneficiary is "primarily" performing the duties of a function manager. See IKEA US, Inc. v. 
u.s. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999); see also 8 C.F.R. § 103.2(b)(14). 
Second, with regard to the beneficiary's placement within the petitioner's organizational hierarchy, the 
AAO points out that the petitioner has only two direct employees-the beneficiary and her husband. 
Despite the fact that the petitioner hires sub-contractors to carry out certain operational tasks, no 
clarifying information was provided to establish the frequency with which these individuals are hired to 
carry out their services. Moreover, the AAO cannot overlook the numerous operational tasks that are 
assigned to the beneficiary herself, despite the petitioner's hiring sub-contractors to perform certain non­
qualifying functions. 
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 would 
perform are only incidental to his/her proposed position. 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 (8) 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). In the present matter, the petitioner did 
not establish that the non-qualifying tasks that arc :lssigned to the beneficiary would only be incidental to 
Page 8 
her proposed position. To the contrary, it appears that many of the non-qualifying tasks the beneficiary 
would perform would consume a considerable portion of the beneficiary's time and would in fact define 
the proposed position. 
Finally, despite counsel's assertions, the petition does not establish that the beneficiary will assume the 
role of 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 101 (a)(44)(A)(ii) of the Act. 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, 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. 
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 primarily manaKes the function rather than performs the duties related to 
the function. 
Thus, neither responsibility for an essential task within an organization nor the lack of a subordinate staff 
is a factor that defines a function manager by itself, particularly when the record shows that the individual 
is actually performing the key duties related to the function he or she claims to manage. Here, the record 
indicates that the beneficiary is doing just that. 
While there is no question that the duties the beneficiary performs are essential to the petitioning entity, 
the AAO cannot overlook the fact that the majority of the duties are operational tasks that are necessary to 
provide the services that the petitioner sells to its clients. The AAO finds that the beneficiary'S 
participation in media relations, media networking, publicity preparation, market research, licensee 
liaison, as well as her contributions to course set-up, materials, and instruction all indicate that the 
beneficiary spends and will spend the primary portion of her time performing the petitioner's daily 
operational tasks. Despite the fact that the petitioner failed to assign a time allocation to any of the 
beneficiary's job duties, the AAO nevertheless finds that the record contains sufficient information to 
establish that the beneficiary'S primary focus would not be placed on qualifying managerial or executive 
tasks. 
To be clear, neither the beneficiary's qualifications nor the significance of her role within the petitioning 
organization is in question. These are not, however, the sole factors that USCIS considers in determining 
a beneficiary's eligibility for classification as a multinational manager or executive. While the 
beneficiary'S placement within the petitioner's hierarchy may be at an elevated level and while her level of 
discretionary authority is indicative of someone who may be employed in a managerial capacity, the 
actual duties themselves reveal the true nature of the beneficiary'S 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). 
As discussed, the beneficiary's primary concern in her proposed position is the petitioner's daily 
operational tasks. Despite the petitioner's use of sub-contractors to perform certain operational tasks, the 
beneficiary's job description strongly indicates that the sub-contractors did not relieve the beneficiary 
from having to allocate the primary portion of her time on the performance of non-qualifying tasks. 
Accordingly, based on the director's findings and the additional findings issued in this decision, the AAO 
... 
Page 9 
concludes that the petitioner has failed to establish that it would employ the beneficiary in a qualifying 
managerial or executive capacity and on the basis of this conclusion the instant petition cannot be 
approved. 
Additionally, while not addressed in the director's decision, the AAO finds that the petitioner failed to 
establish that the beneficiary'S employment abroad was within a qualifying managerial or executive 
capacity. Like the deficiencies noted with regard to the beneficiary's proposed position, the petitioner's 
description of the beneficiary'S employment abroad also incorporates numerous non-qualifying job duties. 
In fact, the job description for the position abroad is nearly identical to the description for the proposed 
position. Therefore, on the basis of the analysis provided above, the AAO cannot conclude that the 
beneficiary was employed abroad in a primarily managerial or executive capacity. 
In light of the AAO's additional finding, it is noted that 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), afi'd 345 F.3d 683 (9th Cir. 2003); see also Sollane v. 
DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(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. 
Lastly, with regard to USCIS's prior approvals of the petitioner's L-IA employment of the same 
beneficiary, the AAO notes 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. Thus, 
if the prior L-l A petition had been approved on the basis of the documents that are currently before the 
AAO, such approval would have been material and gross error on the part of the director and would 
therefore be currently subject to revocation. 8 C.P.R. § 214.2(l)(9)(iii)(A)(5). 
Furthermore, the approval of a nonimmigrant petition, or even multiple petitions as in the petitioner's 
case, in no way guarantees that USCIS will approve an immigrant visa petition filed on behalf of the same 
beneficiary. 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). 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. 51 (200 I). Therefore, based on the reasons stated above, the prior approvals of the petitioner's 
nonimmigrant petitions will not guide the outcome in the present matter. 
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. § 1361. The petitioner has 
not sustained that burden. 
ORDER: The appeal is dismissed.