dismissed EB-1C Case: Non-Profit Management

.identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privw 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Of$ce of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: 
 JAN 2 1 2010 
LIN 07 138 51323 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
\ Jchief, Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a District of Columbia non-profit organization that seeks to employ the beneficiary 
as its executive director. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. $ 1153(b)(l)(C), as a multinational executive or manager. 
The director determined that the petitioner failed to establish that it would employ the beneficiary in 
a managerial or executive capacity and denied the petition on that basis. On appeal, counsel disputes 
the director's decision and submits a brief in support of his arguments. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding the 
time of the alien's application for classification and admission into the 
United States under this subparagraph, has been employed for at least 
1 year by a firm or corporation or other legal entity or an affiliate or 
subsidiary thereof and who seeks to enter the United States in order to 
continue to render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and who are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under 
section 203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is 
required for this classification. The prospective employer in the United States must furnish a job 
offer in the form of a statement which indicates that the alien is to be employed in the United States 
in a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by the alien. 
The primary issue in this proceeding is whether the beneficiary would be employed in the United 
States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor 
is not considered to be acting in a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (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. 
In support of the Form 1-140, the petitioner submitted a letter dated March 30, 2007, which includes 
the following description of the beneficiary's proposed U.S. employment: 
As Executive Director of the Petitioning entity since July 2005, [the beneficiary] is, 
and will continue to be, responsible for the oversight of total management, 
development, and expansion of the entity, including budgeting, identifying and 
meeting with potential donor sources, and formulating operating strategies and 
Page 4 
coalition building. She establishes the goals and policies of the U.S. petitioning entity 
in accordance with the Argentinean parent, as well as exercises wide latitude in 
discretionary decision-making with only general supervision or direction from higher 
level executives or board of directors of the organization. Therefore, her employment 
in the United States is in an executive capacity. 
The record also includes a letter dated March 9, 2007 in which the petitioner provided the following 
list of the beneficiary's proposed job responsibilities: 
Oversight of total management, development, and expansion of the entity as well as 
overseeing and implementing budgets, identifying and meeting with potential donor 
sources and formulating operating strategies and coalition building. 
Establishing the goals and policies of [the petitioner] in accordance and at the 
pleasure of FEU-Argentina, as well as exercise wide latitude in discretionary 
decision-making with only general supervision or direction from higher level 
executives or board of directors of the organization. 
Coordinating overall activities for the fulfillment of [the petitionerl's purpose. 
Fundraising, achieving several contracts supported by different international 
organizations. 
Networking with other organizations, a[t] both the regional and international 
level [s] . 
Monitoring and provi[di]ng instructions for programming and generation of 
required outputs as well as reporting to donors. 
On April 17, 2008, the director issued a request for additional evidence (RFE), instructing the 
petitioner to submit, in part, a more detailed description of the beneficiary's job duties in her 
proposed position with the U.S. entity. The petitioner was asked to specifically enumerate each of 
the beneficiary's proposed job duties and to assign the percentage of time that would be allotted to 
each item on the list. The petitioner was also asked to describe its organizational hierarchy, 
specifying the beneficiary's role therein as well as her placement relative to others within the 
petitioning organization. 
In response, counsel for the petitioner provided a letter dated March 22, 2008, asserting that the 
beneficiary's prospective U.S. employment is within a qualifying executive capacity. Counsel urged 
U.S. Citizenship and Immigration Services (USCIS) to take into account the reasonable needs of the 
petitioning entity. Additionally, the petitioner divided the beneficiary's prospective employment into 
five main categories, each of which was assigned a percentage of time as follows: 
1. 
 Establishing the goals and policies of the [petitioner], as well as exercising wide 
latitude in discretionary decision-making, in consultation with the Board. 5% 
2. 
 Oversight of total management, development, and expansion of the organization, as 
well as designing project proposals and budgets, identifying donors and formulating 
operating strategies and coalition building. 
 25% 
3. 
 Implementation and supervision of overall activities for the fulfillment of [the 
petitionerl's purpose. 45% 
4. 
 Representing [the petitioner] by networking with other organizations, at regional 
and international levels. 20% 
5. 
 Monitoring and proving [sic] instructions for programming and generation of 
outputs as well as reporting to donors. 
 5% 
The petitioner elaborated on each of the above categories. With regard to the first category, the 
petitioner stated that the beneficiary would consult closely with the foreign entity's board of 
directors, helping the board determine how the U.S. entity would operate consistent with its bylaws. 
With regard to the second category-managing, developing, and expanding the organization-the 
beneficiary would develop and periodically update the pool of potential donors and design project 
proposals requesting funding for the petitioner's initiatives. Designing project proposals would also 
require developing budgets and partnering with other entities for project execution. The beneficiary 
would be responsible for submitting the completed project proposals to the donors and subsequently 
following up with the potential donors for further negotiation to ensure a project's approval. 
The activities in the third category-implementation and supervision of activities-would 
commence after funding is approved for a particular project. The beneficiary would be required to 
select the support staff andlor third party service providers to carry out the underlying duties 
required of the approved project. Based on the examples of previously approved projects, the 
petitioner indicated that the beneficiary's role may vary depending on the other entities involved in a 
particular project. The beneficiary may be required to do further research in finding additional 
funding for follow-up phases of a project or she may need to partner with other entities to execute 
the goals of a particular project. In other words, the beneficiary's job duties as far as implementing a 
particular project would vary depending on the specific needs of the project. 
The fourth category-networking with organizations at regional and international levels-would 
require the beneficiary to represent the petitioner at various forums and conventions. Based on prior 
such networking activities, the petitioner indicated that the beneficiary's duties may include 
providing and disseminating informational literature to other participating organizations or doing 
further research to provide the necessary expertise for various initiatives. 
The fifth and final category-monitoring projects and providing further instruction-would require 
the beneficiary to report to the board of directors as to the goals set for each project. The beneficiary 
would also report to each project's donors via narrative and financial reports. 
Lastly, the petitioner provided its organizational chart, which consisted of its board of directors at 
the top of the organizational hierarchy, followed by the beneficiary as the petitioner's executive 
director, and a graphic designer as the third party service provider to be overseen by the beneficiary. 
In a decision dated September 24, 2008, the director denied the petition, finding that the petitioner 
failed to establish that the beneficiary's prospective employment would primarily consist of job 
duties within a qualifying managerial or executive capacity. 
On appeal, counsel argues that the director failed to take into account the nature and structure of the 
petitioning entity and instead made the size of the petitioning organization the determining factor in 
reaching the adverse conclusion. Counsel claims that the director's decision indicates that the 
reasonable needs of the petitioner were not given proper consideration and further asserts that 
sufficient documents were submitted to support the claim that the beneficiary would be employed in 
an executive capacity. Counsel concedes that while the beneficiary would be expected to perform 
some non-qualifying tasks, her primary responsibilities would be directing and implementing the 
activities associated with each of the petitioner's initiatives. 
After a thorough and comprehensive review of the record, the AAO finds that counsel's arguments 
are not persuasive. 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. tj 204.56)(5). It is noted 
that an employee who primarily performs the tasks necessary to produce a product or to provide 
services is not considered to be employed in a managerial or executive capacity. See sections 
10 1 (a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm. 1988). In the present matter, the description of the beneficiary's proposed employment does 
not indicate that the beneficiary would primarily perform executive or managerial-level tasks. 
Rather, it appears, based on the job description provided, that until the beneficiary finds a donor(s) to 
fund one of the petitioner's initiatives, her job would primarily consist of daily operational tasks, 
including conducting research to use as the basis for a proposal, actually writing the proposal, 
narrowing down the list of prospective donors, contacting the prospective donors to fund a particular 
project, and properly staffing a particular project based on the requirements specified in the proposal. 
It appears that the time constraints for each of these non-qualifying tasks will vary depending on the 
actual project and the length of time that it would take to obtain a donor(s) to fund the project. 
Although there is no express discussion as to what happens if the beneficiary is unable to find donors 
to fund a project, it would appear that such an obstacle would require the beneficiary to conduct 
further research and perhaps start the process all over again with regard to another project. 
Thus, in light of the above, it appears that counsel's assertion is premised on the beneficiary being 
able to secure funding for a project. Any work the beneficiary would be doing prior to the project 
being funded would be deemed as a daily operational task where the beneficiary is working to do 
research, write a proposal, and seek out donors to implement the proposal. In fact, counsel actually 
discusses a proposal that took the beneficiary eight months to complete only to be rejected by the 
organization that requested that the proposal be put together.' Counsel's example only furthers the 
- 
 - - 
1 
 See section 11, New Developments and Initiatives Since March 2008, appellate brief. 
AAO's main concern-that the beneficiary would primarily perform non-qualifying tasks for lengthy 
and undetermined periods of time until funding for a particular project is ultimately secured. 
While it is possible that the beneficiary's set of job duties would change once a proposal is accepted 
and ready for implementation, the record strongly suggests that the underlying process of attaining 
funding for the proposal consists primarily of non-qualifying tasks, which would in large part be 
performed by the beneficiary for unspecified periods of time. In statutorily requiring that the 
beneficiary of the immigrant visa classification sought herein "primarily" perform duties within a 
qualifying managerial or executive capacity, there is no indication that Congress intended the 
definition to apply during only certain phases of the beneficiary's prospective employment. Rather, 
the key to determining whether the beneficiary's prospective employment would be within a 
qualifying capacity is narrowing down the types of tasks the beneficiary would perform on a daily 
basis. Only by determining that the primary portion of the beneficiary's daily tasks are managerial or 
executive can the AAO ultimately conclude that the beneficiary would be employed in a qualifying 
capacity. Here, by the petitioner's own admission, the beneficiary's proposed position is cyclical in 
that it would require the beneficiary to spend extended periods of time performing non-qualifying 
tasks to secure proper funding prior to the implementation phase of a project at which time the 
qualifying tasks would commence. Once a particular project is over, however, the cycle would start 
all over again, requiring the beneficiary to once again commit to performing all the non-qualifying 
tasks that are inherent to the initial stages of any given initiative. 
Additionally, while the instant petitioner's staffing is not the basis for the overall adverse finding, it 
is noted that in reviewing the relevance of the number of employees a petitioner has, federal courts 
have generally agreed that USCIS "may properly consider an organization's small size as one factor 
in assessing whether its operations are substantial enough to support a manager." Family, Inc. v. US. 
Citizenship and Immigration Services, 469 F.3d 13 13, 13 16 (9th Cir. 2006) (citing with approval 
Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Suva, 905 F.2d 
41,42 (2d Cir. 1990) (per curiarn); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 
2003). Moreover, in its efforts to establish that the beneficiary does not primarily perform non- 
qualifying duties, the petitioner must provide documentation establishing who exactly performs its 
daily operational tasks. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). Here, the record shows that while a project is in its initial stages and funding has not 
yet been obtained, the petitioning organization relies on the beneficiary to accomplish all of the daily 
operational tasks, as the petitioner cannot staff a project prior to obtaining proper funding. Thus, 
contrary to counsel's argument, the director can and should look at an organization's staffing to 
determine the company's ability to relieve the beneficiary from having to devote the primary portion 
of his or her time to the performance of non-qualifying tasks. In light of the above findings, the 
AAO cannot conclude that the beneficiary would be employed in a qualifying managerial or 
executive capacity. On this basis, the instant petition cannot be approved. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that 
were not previously addressed in the director's decision. 
First, 8 C.F.R. 5 204.5(j)(3)(i)(B) states that the petitioner must establish that the beneficiary was 
employed abroad in a qualifying managerial or executive position for at least one out of the three 
years prior to his or her entry into the United States as a nonimmigrant to work for the same 
employer. In the instant matter, the record indicates that the beneficiary's employment abroad 
consisted of tasks similar to those she would perform in her proposed position within the petitioning 
entity. 
 Therefore, relying on the reasoning discussed above with regard to the proposed 
employment, the AAO cannot conclude that the beneficiary's employment abroad was within a 
qualifying managerial or executive capacity. 
Second, 8 C.F.R. 5 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary's foreign employer. The regulation and case law confirm that 
ownership and control are the factors that must be examined in determining whether a qualifying 
relationship exists between United States and foreign entities for purposes of this visa classification. 
Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of Siemens Medical 
Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In 
the context of this visa petition, ownership refers to the direct or indirect legal right of possession of 
the assets of an entity with full power and authority to control; control means the direct or indirect 
legal right and authority to direct the establishment, management, and operations of an entity. 
Matter of Church Scientology International, 19 I&N Dec. at 595. In the present matter, the claim is 
made that the beneficiary's foreign employer owns 50% of the U.S. entity. However, as stated 
above, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. at 165. As the 
record lacks evidence to establish who owns the U.S. entity, the AAO cannot conclude that the U.S. 
and foreign entities are similarly owned and controlled. 
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), affd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. When the AAO denies a 
petition on multiple alternative grounds, a plaintiff can succeed on a challenge only if it is shown 
that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See Spencer 
Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 345 F.3d 683. 
Lastly, the director observed in his decision that the petitioner's employment of the beneficiary as the 
L-1A nonimmigrant visa category had been approved. The director noted that such approval would 
not guide USCIS in a determination with regard to the immigrant visa classification sought in the 
present matter, despite the similarities in the regulatory provisions that pertain to the immigrant and 
nonimmigrant visa categories. The director duly noted that there are significant differences between 
the nonimmigrant visa classification, which allows an alien to enter the United States temporarily for 
no more than seven years, and an immigrant visa petition, which permits an alien to apply for 
permanent residence in the United States and, if granted, ultimately apply for naturalization as a 
United States citizen. CJ: $5 204 and 214 of the Act, 8 U.S.C. $5 1 154 and 1 184; see also 5 3 16 of 
the Act, 8 U.S.C. 9 1427. The director also properly pointed out that USCIS is not required to 
approve applications or petitions where eligibility has not been demonstrated, particularly because of 
the possibility that prior approvals may have been erroneous. See, e.g. Matter of Church Scientology 
International, 19 I&N Dec. at 597. 
On appeal, counsel argues that a USCIS memorandum requires that the director provide the 
petitioner with an explanation for the apparent inconsistency between the two decisions approving 
the petitioner's L-1A nonimmigrant petitions and the most recent decision denying the Form 1-140 
immigrant petition. The AAO notes, however, that USCIS memoranda merely articulate internal 
guidelines for service personnel; they do not establish judicially enforceable rights. An agency's 
internal personnel guidelines "neither confer upon [plaintiffs] substantive rights nor provide 
procedures upon which [they] may rely." Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 
2000)(quoting Fano v. OfNeill, 806 F.2d 1262, 1264 (5th Cir.1987)). It is further noted that each 
nonimmigrant and immigrant petition is a separate record of proceeding with a separate burden of 
proof; each petition must stand on its own individual merits. USCIS is not required to assume the 
burden of searching through previously provided evidence submitted in support of other petitions to 
determine the approvability of the petition at hand in the present matter. It therefore stands to reason 
that USCIS cannot be burdened with searching the records of proceedings for previously approved 
petitions in order to explain what the petitioner may perceive as an inconsistency. 
Counsel attempts to distinguish the facts of the instant case from the facts of the cases that were cited 
by the director in support of the proposition that a Form 1-140 may be denied notwithstanding a prior 
approval(s) of a nonimmigrant petition filed on behalf of the beneficiary by the same petitioner. 
Counsel's main point of distinction seems to be that the petitioners in the cited cases were seeking to 
classify their respective beneficiaries as multinational managers, while the petitioner in the present 
matter seeks to classify the beneficiary as a multinational executive. The AAO finds, however, that 
this distinction is irrelevant. In fact, the three cases were cited as mere examples of USCIS's power 
to deny I- 140 immigrant petitions even after approving prior nonimmigrant I- 129 L- 1 petitions. See, 
e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. 
Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Thus, whether the petitioners in the cited cases sought to classify their respective beneficiaries as 
multinational managers or executives was a distinction entirely immaterial to USCIS's overall 
authority in denying any petition where eligibility had not been established. Therefore, while the 
AAO cannot presume to know the contents of the records of proceeding with regard to the 
petitioner's previously filed petitions, if the previous nonimmigrant petitions were approved based on 
the same assertions and supporting evidence contained in the current record, the approvals would 
constitute material and gross error on the part of the director. The AAO can conclude with sufficient 
certainty that the record in the present matter does not support approval of the Form 1-140 immigrant 
petition. Therefore, regardless of any prior findings that were favorable to the petitioner, this 
immigrant petition does not warrant approval. 
Accordingly, the petition will be denied for the above stated reasons, with each considered as an 
independent and alternative basis for denial. In visa petition proceedings, the burden of proving 
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 
U.S.C. § 136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.