dismissed EB-1C Case: Newspaper Publishing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-P-D-N-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 7, 2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a newspaper publisher, seeks to permanently employ the Beneficiary as its "Pre Press 
Manager" under the first preference immigrant classification for multinational executives or managers. 
See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This 
classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United 
States to work in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that: (1) the Beneficiary would be employed in the United States in a managerial capacity and 
(2) the Beneficiary was employed abroad in a managerial capacity. The Petitioner subsequently filed a 
motion to reopen, which the Director also denied, making a finding that pertained only to the 
Beneficiary's proposed U.S. employment. 
On appeal, the Petitioner submits additional evidence, disputes the Director's findings, and asserts 
that the Beneficiary was employed abroad, and would be employed in the United States, m a 
managerial capacity, specifically as a function manager. 
Upon de novo review, we will dismiss the appeal. We note that, in denying the Petitioner's motion, the 
Director did not withdraw or address his original adverse finding with regard to the Beneficiary's 
former employment abroad. The Petitioner has not overcome the adverse finding regarding the 
Beneficiary's proposed employment in the United States. As this issue is dispositive and the petition 
cannot be approved, we will not address the issue of the Beneficiary's employment with the foreign 
entity. 
I. LEGAL FRAMEWORK 
Section 203(b )(1 )(C) of the Act makes an\ immigrant visa 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. 
Matter of E-P-D-N-, Inc. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under sectibn 203(b)(1)(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The Form I-140 must be accompanied by 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. 8 C.F.R. § 204.5G)(3). 
11. U.S. EMPLOYMENT IN MANAGERIAL CAPACITY 
As indicated above, the Director determined that the Petiti~'ner did not establish that the Beneficiary 
would be employed in a managerial capacity. 1 
The term "managerial capacity" is defined as "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. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A). Further, "[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." !d. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
1 
The Petitioner does not claim that the Beneficiary would be employed in the United States in an executive capacity. 
2 
Matter of E-P-D-N-, Inc. 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101(a)(44)(C) ofthe Act. 
A. Duties 
When examining whether a Beneficiary will be employed in an executive capacity, we will look first 
to the petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, 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); Champion World, 940 F.2d 1533. 
In its initial cover letter the Petitioner stated that the Beneficiary will report "only to the Production 
Manager" and included the following list of the Beneficiary's proposed duties and responsibilities as 
"Prepress Systems Manager": 
• Responsible for managing the maintenance, development and operation of the 
computer systems, networks, databases and software relating to production and 
publishing of newspapers; 
• Responsible for PLC (programmable logic control) unit; 
• Assuring equipment and network uptime, to assess and recommend software 
changes, and review and approve new proposals on how to accomplish tasks such 
as automation within the Production Prepress operations[;] 
• Meeting daily production needs by supervising press crews and setting work 
schedules[,] enforcing quality standards, maintaining preventive maintenance 
programs, and ordering parts and supplies inventory; 
• Ensuring products produced for internal and external customers meet deadlines, 
quality and productivity goals[;] 
• Recognizing and implementing new procedures which improve the process[;] 
• Effectively communicating with the press department capabilities and tailor 
solutions to provide the maximum amount of satisfaction to the customer in a 
timely manner; 
• Providing professional leadership and direction to all press department employees 
while maintaining a productive atmosphere and high morale; and 
• Regularly holding communication meetings to effectively communicate on a 
professional level in both verbal and written forms. 
The Petitioner also provided job descriptions for two press managers claimed to be the Beneficiary's 
subordinates. We note that the duties assigned to those subordinates are identical to the duties 
provided for the Beneficiary, as listed above. 
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Matter of E-P-D-N-, Inc. 
The Petitioner further stated that 60% of the Beneficiary's time would be spent ''managing the 
function of the department" and that the other 40% of his time would be allocated to managing 
department personnel. However, the Petitioner did not assign time allocations to individual job 
duties or specify which job duties pertain to managing a function such that would support the claim 
that 60% of the Beneficiary's time would be allocated to function management. The Petitioner also 
stated that the Beneficiary would have authority over hiring and firing personnel within his 
supervisory purview. 
While the Petitioner's statement implied that essentially all of the Beneficiary's duties would be 
managerial, we note that several of the described duties, such as being responsible for the PLC unit, 
managing software, systems, and networks, ensuring equipment uptime, and ordering parts and 
supplies, are technical, operational or administrative, rather than managerial in nature. Other duties, 
such as "implementing new procedures to improve processes," and monitoring quality and 
production goals, are too vague to provide insight into the nature of the Beneficiary's daily tasks. 
The Director questioned the managerial nature of the Beneficiary's proposed position and therefore 
issued a request for evidence (RFE) instructing the Petitioner to provide a list of the Beneficiary's 
job duties and to indicate how much time the Beneficiary would allocate to each item on the list. 
In response, the Petitioner altered the Beneficiary's position title from prepress manager to "Pre­
Press Manager/Inserting Process" claiming that the Beneficiary "is fully responsible for the Pre­
Press Inserting Process operations." The Petitioner did not specify any characteristics that 
distinguish a prepress manager from a prepress manager specializing in inserting process operations. 
The Petitioner did not comply with the Director's request for a specific list of the Beneficiary's daily 
job duties and their respective time allocations and instead provided another job description, which 
indicates that the Beneficiary would advise, delegate tasks to, and oversee subordinate employees 
and have the authority to make decisions "at any level" with regard to the prepress department. The 
Petitioner stated that the Beneficiary would be involved in making and implementing policies, 
reporting on operations of the department, ensuring proper functioning of machinery, reviewing 
customer service contracts, and "maximizing the output of ... customer servic.e and logistics." The 
Petitioner also indicated that the Beneficiary's position would be comprised of productive and 
administrative tasks, planning and organizing activities in the prepress department, and coaching and 
motivating subordinates. 
The Petitioner provided another job description within the same response statement, listing the 
following as the Beneficiary's specific daily job duties: 
Responsible for overseeing and approving all print, digital and inserts advertising 
sales and marketing activities, training, motivating and developing an energetic 
Prepress team, providing direction to staff to help them achieve objectives and 
targets. Achieves operational objectives by contributing information and 
recommendations to strategic plans and reviews; preparing and completing action 
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Matter of E-P-D-N-, Inc. 
plans; implementing production, productivity, quality, and customer-service 
standards; resolving problems; identifying trends; determining system improvements; 
implementing change. Improve the operational systems and processes in support of 
departl)lent mission- specifically, support better management reporting, information 
flow and management, business process and organizational planning. 
The Petitioner did not explain how the above list of duties is consistent with the original job 
description, which made no mention: of insert advertising sales and marketing activities, action plans, 
or customer service duties and did not indicate that the Beneficiary would identify trends and engage 
in problem solving, the nature of which the above job description did not clarify. Although the 
Petitioner claimed that the Beneficiary would allocate 1 00?/o of his time to managerial tasks, it did 
not assign specific time allocations to individual job duties, claiming that specific time allocations 
"vary according to department needs." 
In denying the petition, the Director found that the Petitioner did not adequately describe the 
Beneficiary's job duties and did not adequately support its claim that the Beneficiary would serve in 
a managerial capacity. 
The Petitioner disputed the Director's finding in a motion to reopen, asserting that the Beneficiary's 
position involves administrative duties for 35% ofthe time, setting department goals for 15% of the 
time, creating policies for 10% of the time, managing resources for 15% of the time, financial 
management for 10% of the time, and production tasks for the remaining 15% of the time. This job 
description overlaps partly, but not entirely, with the job description in the RFE response and neither 
job description is consistent with information in the Petitioner's initial supporting statement. 
The Director ultimately denied the Petitioner's motion, finding that the evidence submitted was not 
new and that the information pertaining to the Beneficiary's job description was previously 
submitted and found to be insufficient to establish that the Beneficiary would primarily perform 
managerial job duties. 
On appeal, the Petitioner submits new evidence, including printing agreements with third parties, 
numerous invoices, and "Printing Press Sales Reference" documents, without sufficiently explaining 
how such evidence is relevant to the issue,of the Beneficiary's proposed employment in the United 
States.2 The Petitioner also contends that the Director did not previously consider whether the 
Beneficiary qualifies as a function manager. The Petitioner argues that the Beneficiary manages the 
prepress system which is an essential function of the U.S. entity. 
The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
2 In the appeal brief, Petitioner's newly retained counsel also requests that "evidence submitted by prior counsel be 
disregarded, as prior counsel no longer is employed by [counsel's law firm]." Counsel does not further elaborate as to 
which evidence should be disregarded or explain why we should disregard evidence submitted by her former colleague. 
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Matter of E-P-D-N-, Inc. 
within the organization. See section 101(a)(44)(A)(ii) ofthe Act. The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that a beneficiary will manage an essential 
function, a petitioner must furnish a written job offer that clearly describes the duties to be 
performed in managing the essential function, or more specifically, identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of a 
beneficiary's daily duties attributed to managing the essential function. See 8 C.P.R. § 204.5(j)(5). 
In addition, a petitioner's description of a beneficiary's daily duties must demonstrate that the 
beneficiary will manage the function rather than perform duties related to the function. See Matter 
ofZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). 
In this matter, the Petitioner has not provided evidence that the Beneficiary manages an essential 
function. As previously noted, the Petitioner did not provide an adequate job description which 
specifically identified the tasks the Beneficiary would perform that are indicative of managing the 
prepress function. While the RFE expressly instructed the Petitioner to list the Beneficiary's specific 
daily tasks with time allocations, the RFE response contained a series of job descriptions that were 
inconsistent with the original job description and did not add to our understanding of what the 
Beneficiary would be doing in his proposed position. It is unclear why the Petitioner provided a 
different job description in response to the RFE instead of simply expanding on the job description it 
originally provided. The Petitioner did not explain the discrepancy in the Beneficiary's position or 
clarify how the different job descriptions can apply to the same position. The Petitioner did not 
acknowledge the change in position titles or explain the significance of adding "Inserting Process" as 
part of the Beneficiary's position title. The Petitioner must resolve these inconsistencies with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the reliability 
and sufficiency of other evidence submitted in support of the requested immigration benefit. !d. 
Here, the Petitioner does not acknowledge or provide evidence to resolve the inconsistencies in the 
different job descriptions and altered position title. 
Further, the record lacks a detailed job description listing the Beneficiary's specific job duties and 
therefore does not support the Petitioner's claim that 60% of the Beneficiary's time would be spent 
managing an essential function. 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), aff'd, 905 
F.2d 41 (2d. Cir. 1990). Moreover, the overlap between the job duties assigned to the Beneficiary in 
his original job description and the job duties of the Beneficiary's direct subordinates is particularly 
problematic, as it is unclear how the Beneficiary can be seen as managing an essential function if the 
~ " 
job duties he performs are identical to those performed by two of his claimed subordinates. If 
USCIS finds reason to believe that an assertion offered in the petition is not true, USCIS may reject 
that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § 1154(b); Anetekhai v. INS, 876 F.2d 
1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Further, as previously noted, in order to determine that the Beneficiary primarily manages an 
essential function, the Petitioner must provide a detailed list of the Beneficiary's job duties to 
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Matter of E-P-D-N-, Inc. 
establish that he manages, rather than performs the underlying duties of that function. Having 
subordinates who carry out job duties that are similar to those of the function manager negates the 
idea that the Beneficiary primarily performs job duties that are consistent with managing a function. 
The Petitioner's claim that that the Beneficiary does not work or program machines, change ink, or 
replace paper is not sufficient to establish that the Beneficiary primarily performs job duties of a 
managerial nature. Such an affirmative conclusion necessarily requires a comprehensive job 
description that conveys a meaningful understanding of the actual tasks the Beneficiary would 
perform. 
As the Petitioner has not provided this critical evidence and instead offered deficient and 
inconsistent information pertaining to the Beneficiary's proposed position, we cannot conclude that 
the Beneficiary's duties as a prepress manager would be primarily managerial in nature. 
B. Staffing 
Beyond the required description of the job duties, we review the totality of the record when 
examining the claimed managerial capacity of a beneficiary, including the company's organizational 
structure, the duties of a beneficiary's subordinate employees, the presence of other employees to 
relieve a beneficiary from performing operational duties, the nature of the business, and any other 
factors that will contribute to an understanding of a beneficiary's actual duties and role in a business. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10l(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. The statute plainly states that 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 10l(a)(44)(A)(iv) of the Act; 8 
C.F.R. § 204.5G)(4)(i). If a beneficiary directly supervises other employees, the beneficiary must 
also have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. 8 C.F.R. § 204.50)(2). While a function manager focuses on managing an 
essential function rather than overseeing a subordinate staff, the petitioner must nevertheless 
establish that the beneficiary would not be· required to allocate his or her time primarily to 
operational and administrative tasks. Inherent to both a function and a personnel manager is that the 
employing entity has the necessary support staff to relieve the beneficiary from having to primarily 
perform the organization's operational and administrative functions. 
In the present matter, the Petitioner's original statement indicated that the Beneficiary manages two 
press managers, two supervisors, and four press operators. The Petitioner provided job descriptions 
for these positions and stated that the Beneficiary reports exclusively to the company's production 
manager. The Petitioner did not provide a corresponding organizational chart illustrating the staffing 
hierarchy within the prepress department. The initial supporting evidence also included the 
Petitioner's federal quarterly tax return and list of employees for the first quarter of 2015, which 
immediately preceded the time period during which the instant petition was filed. Both documents 
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Matter of E-P-D-N-. Inc. 
indicate that the Petitioner had no more than 22 employees prior to filing. We note that the 
Petitioner claimed to have a total of 120 employees in the United States, thereby indicating that 
during the immediate time period that preceded the filing of this petition, it appears the Petitioner 
had approximately 98 fewer employees than the number claimed in the petition. 
In response to the RFE, the Petitioner altered its claim regarding the hierarchy within the 
Beneficiary's department, stating that the Beneficiary exclusively reports to the senior prepress 
manager, not the production manager as originally claimed. The RFE response also included an 
organizational chart depicting the staffing structure of the prepress department, which is shown as 
being comprised of three prepress subdivisions (inserting, commercial and news), each headed by 
one of three prepress managers all of whom answer to the senior prepress manager. The chart shows 
the Beneficiary as the "inserting process" manager and depicts him as directly overseeing two 
managers within this subdivision. Each of the Beneficiary's subordinate prepress managers is shown 
as overseeing one of two assistant managers, each of whom in turn oversees one of two 
supervisory/operators, who oversee three operators each. This staffing hierarchy is inconsistent with 
the information provided in the initial supporting statement, which did not include any assistant 
manager positions and included a total of four, rather than six operators. 
Also, the organizational chart shows as an assistant manager, subordinate to 
This is also inconsistent with the information contained in the initial supporting 
statement, which identified Mr. and Mr. as the two press managers in the 
division headed by the Beneficiary. Neither whom the organizational chart identifies 
as a press manager and direct subordinate of the Beneficiary, nor whom the chart 
identifies as the assistant manager to Mr. were originally listed among the employees within 
the Beneficiary's supervisory purview. 
In addition, the Petitioner provided IRS Form W-2 wage and tax statements it issued to its 
employees in 2015. However, only two ofthe subordinates within the Beneficiary's subdivision, as 
well as the Beneficiary himself, received W-2s in 2015. Thus, based on the W-2s the Petitioner 
submitted, the Beneficiary was supported 
by one press manager and one supervisor within his 
department. Although it is possible that there were operators who may have also been part of the 
Beneficiary's support staff at the time of filing, we cannot verify which operators, if any, supported 
the Beneficiary's division as the Petitioner did not provide their names. Also, we note that in 
support of its motion, the Petitioner provided an entirely different list of the Beneficiary's claimed 
subordinates, indicating that the Beneficiary managed a total of 12 employees. While all 12 
individuals were issued W-2s in 2015, it is unclear why the Petitioner did not claim them as the 
Beneficiary's subordinates originally when the petition was filed. The Petitioner has not resolved 
these discrepancies with independent, objective evidence. Ho, 19 I&N Dec. at 591-92. 
Regardless, the evidence provided does not corroborate the claims made in the Petitioner's initial 
supporting statement or in the subsequently submitted 
organizational chart. Moreover, as a result of 
these discrepancies and those catalogued in the above paragraph, we are unable to determine who 
was available to carry out the non-managerial tasks of the Beneficiary's subdivision and thus we 
) 8 
Matter of E-P-D-N-, Inc. 
cannot conclude that the Petitioner had the capacity to support the Beneficiary in a position that is 
comprised primarily of managerial job duties. While no beneficiary is required to allocate 100% of 
his time to managerial-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary would perform are only incidental to the 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 (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter ofChurch Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 
1988). 
Further, the Petitioner does not submit evidence to corroborate the claim that the Beneficiary 
oversees multiple supervisory employees. Rather, the record contains inconsistent and unreliable 
information that is not sufficient for the purpose of establishing which positions were filled within 
the Beneficiary's division at the time of filing. Therefore, we cannot determine that the Beneficiary 
would assume the position of a function manager, nor can we conclude that the support staff within 
the Beneficiary's division was sufficient to relieve him from having to allocate his time primarily to 
non-managerial job duties, despite the Petitioner's claims on appeal. The Petitioner must support its 
assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 
369, 376 (AAO 2010). 
Based on the deficiencies and inconsistencies in the submitted evidence, the Petitioner has not 
established that it will employ the Beneficiary in a managerial capacity. 
III. PRIOR APPROVALS 
The Petitioner noted that USCIS has approved other petitions that it previously on behalf of the 
Beneficiary, which granted him status as an L-1A nonimmigrant intracompany transferee. We are not 
required to approve applications or petitions where eligibility has not been demonstrated, merely 
because of prior approvals that may have been erroneous. See Matter of Church Scientology Int 'l, 19 
I&N at 597; see also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). 
Furthermore, we are not be bound to follow a contradictory decision of a service center. La. 
Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. La. 2000). 
IV. CONCLUSION 
', 
For the reasons discussed above, the evidence submitted does not establish that the Beneficiary would 
be employed in the United States in a managerial capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-P-D-N-, Inc., ID# 357007 (AAO June 7, 2017) 
9