dismissed EB-1C Case: Oil And Gas

US. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OfJe ofAdmznistrative Appeals MS 2090 
Washineton. DC 20529-2090 
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 U.S. Citizenship 
and Immigration 
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OFFICE: NEBRASKA SERVICE CENTER Date: SEP 0 4 2009 
LIN 08 108 5 1329 
IN RE: 
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. tj 1 153(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. tj 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). 
7 F. Grissom 
A ing Chief, Administrative Appeals Office 
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 corporation offering products and services to the oil and gas industry. It seeks to 
employ the beneficiary as its service supervisor-cementing. 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. 5 1153(b)(l)(C), as a multinational executive or 
manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner 
failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; and 2) the petitioner failed to establish that it would employ the beneficiary in the United 
States in a qualifying managerial or executive capacity. 
On appeal, counsel submits a brief, disputing both grounds of the denial as well as the service 
center's denial of the beneficiary's underlying Application to Register Permanent Residence or 
Adjust Status (Form 1-485). With regard to the latter issue, the AAO has no jurisdiction to consider 
an appeal from the denial of an 1-485. See 8 C.F.R. $ 103.l(f)(3)(iii) (as in effect on February 28, 
2003). Therefore, the AAO will limit the subject matter of this decision to the two grounds that 
served as the basis for denial of the petitioner's immigrant visa petition. 
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 
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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 two primary issues in this proceeding call for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary was employed 
abroad and whether he 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 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or 
function of the organization; 
(ii) 
 establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated January 17, 2008, which 
contained the following list of the beneficiary's duties in the United States: 
. . . manages a team of professionals; coordinates and oversees the cementing service 
line work at the well-site; sets-up and provides personnel to run assigned Cement PSL 
equipment related to monitoring and acquiring job data and for accurate mixing of 
cement slurries in the performance of a cementing job; provides and promotes quality 
customer service; provides job design, execution, sales and follow-up activities; 
cross-trains and participates in one or more product service lines; coordinates and 
directs the activities of service operators; plans and performs necessary calculations 
for the total job at the well-site; evaluates individual performance levels of the crew; 
provides the planning necessary for the job including selecting the crew and 
equipment to be used; provides instructions to the crew; performs dispute resolutions; 
directs the use of resources during operations, including providing leadership to both 
internal and external employees; ensures customer satisfaction with work performed; 
coordinates the clean-up, repair, and preparation of equipment for the next job; 
provides on-the-job skills development to enhance job performance; promotes safety 
awareness and environmental consciousness; ensures compliance with Health, Safety, 
and Environmental (HSE) standards, practices, and guidelines and completes other 
related service duties as needed. 
The petitioner also provided a nearly identical list describing the job duties performed by the 
beneficiary during his employment abroad. 
On June 20, 2008, the director issued a notice informing the petitioner that the evidence submitted 
indicates that the beneficiary's foreign and proposed employment is that of a first line supervisor 
where the beneficiary's subordinates are not professional employees. The petitioner was presented 
with U.S. Citizenship and Immigration Services' (USCIS) definition for the term "profession" in 
order to allow the petitioner to gain an understanding of the criteria one must meet to be deemed a 
professional employee. The petitioner was then asked to provide evidence establishing that the 
beneficiary's subordinates abroad and in the United States met/would meet that definition. 
In response, the petitioner provided a letter from counsel dated July 30, 2008. Counsel stated that, 
according to the definition of profession as included in the above notice, the beneficiary's past and 
proposed employment did not and does not include managing professionals. However, counsel 
asserted that the beneficiary is a function manager in that he supervises, coordinates, and oversees all 
cementing service line work at the well site and is at the senior level with respect to the function. 
Counsel fwrther explained that the beneficiary does not perform the duties of the function, "but 
instead manages others in performing the function." Counsel also supplemented the record with the 
following job duties: 
Supervise, coordinates and oversees cementing service line work at the well site, 
providing quality service to the customer. 
[Acts as the petitioner's] customer liaison on location. 
Facilitate, train and mentor trainee cementer. 
Ensures customer satisfaction with work performed. 
Provides the planning necessary for the job including instructions to the crew and 
equipment used, including dispute resolutions to approved levels. 
Promotes safety awareness and environmental procedures and regulations. 
Ensures compliance with Health, Safety, and Environmental (HSE) regulations and 
guidelines. 
Counsel provided the same list describing the beneficiary's job duties abroad. It is noted that the list 
was originally generated internally by the petitioner and conveyed to counsel in a letter dated July 
30, 2008 from the west coast PSL manager of cementing, who also stated that the beneficiary's 
subordinates include two service operators and an operator assistant, all high school graduates. The 
same individual stated that the beneficiary has supervised six other subordinates in the past with 
similar credentials as the ones currently supervised. 
In a notice dated August 11, 2008, the director denied the petition noting counsel's agreement with 
the determination that neither the beneficiary's subordinates abroad nor his subordinates in the 
United States fit the criteria for what USCIS deems as professional. The director also found 
counsel's claim that the beneficiary is a function manager to be unpersuasive, again pointing to the 
beneficiary's supervision of non-professional employees. 
On appeal, counsel asserts that USCIS must take into account the reasonable needs of the function, 
arguing that the number of employees should not determine eligibility. Counsel's arguments, 
however, are not persuasive, as they fail to address the key aspect of the director's denial, which does 
not focus on how many employees the beneficiary has or would supervise. Rather, the director's 
finding is based on the fact that in the course of the beneficiary's foreign and proposed employment, 
he had spent and would continue to spend a considerable portion of his time managing individuals 
who were non-professionals. As the statutory definition of managerial capacity states that a first line 
supervisor must oversee supervisory, professional, or managerial personnel, the fact that the 
beneficiary's subordinates abroad and in the U.S. are non-professional employees indicates that the 
beneficiary's positions abroad and in the United States do not fit at least one of the criterion specified 
in the statutory definition. 
Additionally, in examining the beneficiary's job duties abroad and in the United States, the AAO 
finds that a considerable number of the listed tasks are non-qualifying. In addition to the numerous 
tasks calling for the beneficiary's oversight of non-professional employees, the beneficiary also 
provides customer service and engages in sales activities and dispute resolution. It is noted that an 
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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 of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm. 1988). In the present matter, the petitioner has not established that the beneficiary has spent 
and would continue to spend the primary portion of his time performing tasks within a managerial or 
executive capacity. To the contrary, the record suggests that the opposite is true with regard to the 
beneficiary's employment abroad and in the United States. 
Despite counsel's assertion that the beneficiary has been and would be managing an essential 
function, the lists of tasks provided by the petitioner to describe the beneficiary's foreign and 
proposed employment make clear that the primary portion of the beneficiary's time has been and 
would be spent managing non-professional personnel. Therefore, 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 1025, 1043 
(E.D. Cal. 2001), aff 345 F.3d 683 (9th Cir. 2003). 
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.