dismissed EB-1C Case: Medical Device Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re: 8406538 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 21, 2020 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a manufacturer of medical supplies, seeks to permanently employ the Beneficiary as a 
corporate technology director in the United States under the first preference immigrant classification 
for multinational executives or managers. Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
The Director of the Nebraska Service Center denied the petition, concluding the record did not 
establish, as required, that the Beneficiary was employed in a managerial or executive capacity abroad 
prior to his entry into the United States as a nonimmigrant. 
On appeal, the Petitioner asserts it has submitted sufficient evidence to establish that the Beneficiary 
acted as a function manager abroad. 
In these proceedings, it is the Petitioner 's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.50)(3). 
11. FOREIGN EMPLOYMENT IN A MANAGERIAL CAPACITY 
The sole issue we will address is whether the Petitioner has established that the Beneficiary acted in a 
managerial or executive capacity abroad. The Petitioner does not claim that the Beneficiary was 
employed in an executive capacity abroad. Therefore, we restrict our analysis to whether the 
Beneficiary was employed in a managerial capacity abroad. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44)(A) of the Act. 
In denying the petition, the Director stated the evidence demonstrated that the Beneficiary was only a 
first line supervisor of operational level employees who were not managers or professionals. On 
appeal, the Petitioner does not dispute that the Beneficiary was a first line supervisor, but asserts the 
Director overlooked its contention that the Beneficiary qualified as a manager of an essential function. 
The statutmy definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A) of the Act. The term "function manager" applies generally 
when a beneficiary did not supervise or control the work of a subordinate staff but instead was 
primarily responsible for managing an "essential function" within the foreign organization. See 
section 101(a)(44)(A)(ii) of the Act. If a petitioner claims that a beneficiary managed an essential 
function, it must clearly describe the duties performed in managing the essential function. In addition, 
the petitioner must demonstrate that "(l) the function was a clearly defined activity; (2) the function 
was 'essential,' i.e., core to the organization; (3) the beneficiary primarily managed, as opposed to 
performed, the function; (4) the beneficiary acted at a senior level within the organizational hierarchy 
or with respect to the function managed; and (5) the beneficiary exercised discretion over the 
function's day-to-day operations." Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 
2017). 
The regulation at 8 C.F.R. § 204.50)(5) requires the Petitioner to submit a statement that clearly 
describes the duties performed by the Beneficiary abroad. Beyond the required description of the 
foreign job duties, we review the totality of the evidence when examining the claimed managerial 
capacity of a beneficiary abroad, including the foreign employer's organizational structure, the duties 
of a beneficiary's subordinate employees abroad, the presence of other employees to relieve a 
beneficiary from performing operational duties, the nature of the foreign business, and any other 
factors that will contribute to understanding a beneficiary's actual duties and role in a business abroad. 
Accordingly, our analysis of this issue will focus on the Beneficiary's duties as well as the foreign 
employer's business activities and staffing levels. 
A. Duties 
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If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary will be primarily engaged in managerial 
duties, as opposed to ordinary operational activities alongside the Petitioner's other employees. See 
Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). 
The Petitioner stated that it and its foreign affiliates are engaged in designing, developing and 
manufacturing "specialty components and minimally-invasive device solutions for medical device 
OEMs worldwide," including "catheter and handheld technology [and] the development and 
production of medical components utilizing complex materials and processes." The Petitioner 
explained that the Beneficiaiy' s fmmer foreign employer provided "research and development 
support, manufacturing, and distribution to all of Europe," including creating "silicone molding (LSR), 
thermoplastic molding, extrusion, and assemblies." The Petitioner indicated that the Beneficiary acted 
abroad as an operations manager from August 2009 to June 2014 where he was "responsible for 
overseeing and directing all production activities," as well as "the successful certification of [the 
foreign employer's] production processes according to ISO 13485." 
In response to the Director's request for evidence (RFE) asking for a more detailed foreign duty 
description for the Beneficiary his former foreign employer provided the following: 
• Directing and planning the implementation of the production set-up for clean room 
manufacturing of extruded and molded medical components (Approximately 15% 
of daily responsibilities) 
o Working through subordinate technical employees to obtain equipment reports 
and conducting technological evaluation of equipment and machinery suppliers 
o Exercising authority to remove suppliers and machinery implementation 
processes 
• Overseeing and directing all production delivery activities for the company 
(Approximately 15% of daily responsibilities) 
o Directing weekly "orders on hand" meetings with senior staff to set priorities 
and ensure on-time delivery, giving feedback on processes to align with SCM, 
Process Technology, and Quality Assurance departments on monthly targets 
o Regularly reviews progress reports to confirm targets met 
• Directing the development, definition, and standardization of proprietary 
technologies and processes in the course of elaborating the Technology Roadmap 
(Approximately 15% of daily responsibilities) 
o Reviewing proposed technical specifications for new machinery and 
components and giving approval 
o Defining standards for technology implementation and timeline to followed by 
operations, production, and manufacturing personnel 
• Overseeing the development and implementation of market-oriented solutions to 
meet the strategic action plan (Approximately 10% of daily responsibilities) 
o Collaborating with the Marketing Manager and associated team to confirm 
operations and production meet planned launches and publications 
• Overseeing the development and implementation of market-oriented solutions to 
meet the strategic action plan (Approximately 10% of daily responsibilities) 
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o Reviewing training proposals and plans, setting training schedules, and 
monitoring training progress 
• Overseeing coordination and implementation of corporate production processes 
throughout the process chain, from raw material supply to final inspection 
(Approximately 10% of daily responsibilities) 
o Meeting with subordinate production and operations staff to review materials 
and allocation reports, production schedules, and scheduling appropriate audit 
processes 
o Regularly monitor through meetings or on the facility floor operational progress 
and gave regular feedback as to implementation 
• Directing optimal plant and tool maintenance, as well as technical activities of 
production workers for molded and extruded products (Approximately 10% of 
daily responsibilities) 
o Supervising Senior Machine Setters, Production Workers, Plant Maintenance, 
and Tool Maintenance to review any matter concerning machine use and defect 
and approving any necessary replacement or repair 
• Planning and scheduling production plant with regard to material flow and 
personnel allocation according to Lean methods (Approximately 10% of daily 
responsibi I ities) 
o Leading daily production meetings with other department heads and production 
staff to track production KPls, identifying bottle necks, working to fill 
personnel gaps 
• Ensuring the proper implementation to SAP solutions or the production and 
maintenance processes (Approximately 10% of daily responsibilities) 
o Serving as a technical expert on an as-needed basis to ensure the utilization of 
SAP and PM module as a business process owner (BPO) and identify best 
practices 
o Scheduled daily production orders in SAP, staging and booking raw materials, 
reporting produced materials, and ensuring full traceability 
The Petitioner submitted a foreign duty description that does not sufficiently demonstrate that the 
Beneficiary primarily devoted his time to qualifying managerial duties abroad. For instance, despite 
asserting that the Beneficiary acted in a managerial role abroad from August 2009 to June 2014, there 
is no supporting documentation to substantiate his delegation of duties to operational employees within 
his claimed function. Further, the Beneficiary's claimed managerial duties are generic and could apply 
to any manufacturing employee in any industry. For instance, the Petitioner did not detail or document 
product development the Beneficiary directed, the company standards he enforced, market-oriented 
solutions he implemented, or specialized training he put in place. Likewise, the Petitioner did not 
specifically articulate or submit supporting evidence to substantiate suppliers the Beneficiary decided 
on, the senior staff meetings he directed, courses he set with respect to the "technology roadmap," 
standards and timelines he defined for technology implementation, and best practices he implemented. 
It is reasonable to conclude that if the Beneficiary primarily managed others within his function and 
primarily delegated non-qualifying operational duties to them for approximately five years, there 
would be some documentation to substantiate these managerial tasks. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily managerial in nature, otherwise 
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meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
In contrast, the Beneficiary's duty descriptions appear to indicate his substantial involvement in non­
qualifying operational tasks and his performance of ordinary operational activities alongside his 
subordinates and other foreign employees. In fact, the Beneficiary's title was operations manager and 
his duty description reflected that he was tasked with production set-up for clean room manufacturing, 
conducting technological evaluation of equipment and machinery suppliers, giving feedback on 
production processes, reviewing proposed technical specifications, and setting training schedules. In 
addition, the Beneficiary's duty description indicated he worked on the facility floor observing 
operational progress, repaired and replaced equipment, tracked KPls, overcame operational 
bottlenecks, acted as a technical expert, staged and booked raw materials, reported produced materials, 
and ensured full traceability of materials and products. As discussed, there is little supporting evidence 
that the Beneficiary was primarily delegating the non-qualifying operational aspects of his duties to 
his claimed subordinates. The Petitioner stated several times in the duty description that the 
Beneficiary directed or oversaw these activities, but there is little evidence to corroborate this 
assertion. 
Whether the Beneficiary was a managerial employee overseas turns on whether the Petitioner has 
sustained its burden of proving that his duties were "primarily" managerial. See sections 
101(a)(44)(A) of the Act. Here, the Petitioner does not sufficiently document what proportion of the 
Beneficiary's duties abroad were managerial functions and what proportion were non-qualifying 
operational tasks. The Petitioner lists the Beneficiary's foreign duties as including both managerial 
tasks and administrative or operational tasks but does not quantify the time he spent on these different 
duties. For this reason, we cannot determine whether the Beneficiary primarily performed the duties 
of a manager abroad as opposed to performing ordinary operational activities alongside other foreign 
employees. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
The fact that the Beneficiary managed or directed a portion of the business does not necessarily 
establish eligibility for classification as a multinational manager. By statute, eligibility for this 
classification requires that the duties of a foreign position be "primarily" managerial in nature. 
Sections 101(A)(44)(A) of the Act. Even though the Beneficiary may have exercised discretion over 
some of the foreign employer's day-to-day operations and possessed the requisite level of authority 
with respect to discretionary decision-making, the position descriptions alone are insufficient to 
establish that his foreign duties were primarily managerial in nature. 
B. Staffing and Function Manager 
If staffing levels are used as a factor in determining whether an individual was acting in a managerial 
capacity, the reasonable needs of the organization are taken into account in light of the overall purpose 
and stage of development of the organization. See section 101(a)(44)(C) of the Act. 
As noted, the Petitioner only asserts that the Beneficiary managed an essential function and does not 
dispute the Director's conclusion that he did not qualify as a personnel manager. In response to the 
Director's RFE, the Petitioner provided an organizational chart reflecting that the Beneficiary 
supervised a maintenance worker, a tool maintenance worker, seven molding operators, and five 
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extrusion operators. The Petitioner indicated the maintenance worker was tasked with improving and 
maintaining existing machinery and that the tool maintenance worker was engaged in improving and 
modifying tooling equipment. Meanwhile, the Petitioner explained that the molding operators 
operated machinery to design, produce, and finish molds for products and that the extrusion operators 
produced and finished tubing for products. 
Again, if a petitioner claims that a beneficiary managed an essential function, it must clearly describe 
the duties they performed in managing the essential function. In addition, the petitioner must 
demonstrate that: (1) the function is a clearly defined activity; (2) the function is 'essential,' i.e., core 
to the organization; (3) the beneficiary primarily managed, as opposed to performed, the function; (4) 
the beneficiary acted at a senior level within the organizational hierarchy or with respect to the function 
managed; and (5) the beneficiary exercised discretion over the function's day-to-day 
operations. Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
The Petitioner has not provided sufficient evidence to establish that the Beneficiary primarily managed 
his claimed function rather than performing it. For instance, the Petitioner generically stated that the 
Beneficiary oversaw all production operations of the company covering Europe, that he had "critical 
decision-making authority over all production policies and operations," and that he implemented 
"various production and manufacturing initiatives." On appeal, the Petitioner emphasizes that the 
Beneficiaiy committed the company "to a course of action or expenditure of funds," provided final 
approval on "any machinery or equipment acquisitions," and "vetoed/approved activities" within his 
function. 
It is noteworthy the Petitioner provides few specific examples and little supporting documentation to 
sufficiently demonstrate the Beneficiary's managerial authority, such as the courses of action he 
decided on, the expenditures he approved, or the actions decided on within the function. In fact, the 
duty descriptions of his claimed subordinates reflect that they are first line machine repairman and 
operators, suggesting there are many other operational tasks being performed by the Beneficiary to 
allow his asserted function to operate. As discussed, these operational functions are included 
extensively in the Beneficiary's duty description, such as him handling production set-up, conducting 
technological evaluation of equipment suppliers, reviewing proposed technical specifications, and 
working on the facility floor supervising his operators and repairman. Further, the Beneficiary's duty 
description indicates he was tasked with overseeing the repair and replacement of equipment, 
overcoming operational bottlenecks, acting as a technical expert, staging and booking raw materials, 
reporting produced materials, and ensuring full traceability of materials and products. 
On appeal, the Petitioner appears to further emphasize these operational tasks noting his responsibility 
for machinery and equipment acquisitions. However, the duty descriptions of the Beneficiaiy's 
subordinates do not indicate that they are performing the non-qualifying operational tasks inherent in 
identifying, purchasing, shipping, receiving and setting up the equipment and other materials within 
the function. Once again, there is no supporting evidence that the Beneficiary primarily delegated the 
non-qualifying operational tasks of his function to his operators and repairman, nor is there evidence 
of him exercising managerial authority over "fill production policies and operations" and "various 
production and manufacturing initiatives." Therefore, in sum, the Petitioner has not sufficiently 
demonstrated that the Beneficiary primarily managed, as opposed to performed, his claimed function. 
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For the foregoing reasons, the Petitioner has not established that the Beneficiary acted in a managerial 
capacity abroad. 
ORDER: The appeal is dismissed. 
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