dismissed EB-1C Case: Pharmaceuticals

• 
identifying data deleted to 
prevent cleariy unwarranted 
invasion of personal privacy 
1'tmUCCOPY 
DATE: JUL 2 6 2011 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) ofthe Immigration and Nationality Act, 8 V.S.c. § 1153(b)(I)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uldl.gov 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a New Jersey corporation that seeks to employ the beneficiary as its business development 
manager. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ [ IS3(b)(1 )(C), as a multinational executive or manager. 
The director denied the petition based on the determination that the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel submits a brief asserting that the beneficiary would be employed in a qualifying capacity 
and that he engages in activities "that exceed the traditional definitions attributable to an 'executive' or 
lmanager.!It 
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 [-140 for classification of an alien under section 
203(b)(1)(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 petitioner submitted sufficient evidence to establish that 
the beneficiary would be employed in the United States in a qualifying managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. § 1101(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. § 1101(a)(44)(B), provides: 
The tenn "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 Fonn 1-140, petitioner's vice president, submitted a statement dated April 
14, 2009 on the beneficiary's behalf. stated that the beneficiary's proposed position would be in a 
managerial capacity and claimed that the beneficiary plays a pivotal role in expanding the petitioner's 
business in the United States. _ stated that the beneficiary would be responsible for coordinating 
regulatory and technical issues dealing with product development and submission of documents to the FDA, 
overseeing and coordinating consultants and partners, identitying market trends and the needs of pharmacies 
and hospitals, participating in the technical training of distributing companies' sales and marketing teams, 
devising and implementing marketing strategies, overseeing product launches, identitying strategic partners 
who can assist in patents and product distribution, reviewing and interpreting scientific and technical details 
for financial reports, and responding to inquiries from regulatory agencies and presenting infonnation to 
Page 4 
upper management and the board of directors._ also claimed that since the beneficiary's arrival in the 
United States in 2006, he has orchestrated FDA approval for six ofthe petitioner's products, thus requiring the 
beneficiary to hire a sales team and forge a relationship with a logistics company to distribute the products. 
On August 7, 2009, the director issued a request for additional evidence (RFE) informing the petitioner that 
the record lacks sufficient evidence to establish that the beneficiary qualifies for the classification of 
multinational manager or executive and instructing the petitioner to provide documentation to establish that 
the beneficiary is eligible for the immigrant classification sought. 
In response, counsel provided a statement dated September 2, 2009 in which he discussed the beneficiary's 
accomplishments since his arrival in the United States, including winning bids to sell the petitioner's products 
to large purchasing organizations, finalizing contracts with large pharmaceuticals distributors, and setting up 
the means to distribute products from India to the United States while ensuring that all actions would be in 
compliance with local and international regulatory requirements. 
On October 8, 2009, the director issued a decision denying the petition. The director determined that the 
petitioner's limited staffing indicates that the beneficiary is not acting in a supervisory or managerial position. 
On appeal, counsel reviews the information previously provided about the beneficiary's position with the U.S. 
entity and points out that the beneficiary has extensive knowledge about the petitioner's "highly complex and 
sophisticated products." Counsel further provides a list of the following job responsibilities that are attributed 
to the beneficiary's proposed position: I) overseeing and coordinating the U.S. operations with the parent 
entity; 2) managing the petitioner's marketing, personnel, and other administrative matters; 3) developing and 
implementing plans for long-term growth and setting corporate policies, goals, and objectives; 4) overseeing 
the management of the petitioner's financial operations; and 5) analyzing, developing, and implementing the 
petitioner's marketing plans and strategies. Counsel asserts that the beneficiary's job duties "fall within the 
executive/managerial parameters" and claims that the beneficiary is vested with discretionary authority to 
make decisions regarding business and personnel matters. Counsel also contends that "most executives and 
manages [sic 1 handle a plethora of incidental administrative, marketing and financial duties in the course of 
performing their primary roles." 
The AAO finds that counsel's statements are not persuasive in establishing that the beneficiary will be 
employed in a qualifying managerial capacity. 
First, with regard to counsel's vague list of general job responsibilities, the AAO points out that 8 C.F.R. § 
204.5(j)(5) requires the petitioner to provide a statement that clearly describes the beneficiary's proposed job 
duties with the U.S. entity. A detailed job description is crucial, as 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), ajj'd, 
905 F.2d 41 (2d. Cir. 1990). The job description provided lists general job responsibilities, which fail to 
clarify what the beneficiary would be doing on a daily basis. Simply providing a vague job description that 
conveys the beneficiary's heightened degree of discretionary authority is not sufficient to establish that the 
proposed employment would be within a qualifying capacity. It is generally expected that any individual that 
is the head of an organization, regardless of organizational size, is charged with ultimate discretionary 
authority over the company's finances, personnel, and goals and policies. However, not all such individuals 
qualify for immigrant classification as a multinational manager or executive. 
Page 5 
In order to establish that the beneficiary merits the desired immigrant classification, the petitioner must show 
that the beneficiary would primarily perform tasks within a qualifying managerial or executive capacity, 
Contrary to counsel's assertion, the beneficiary cannot perform "a plethora of incidental administrative, 
marketing and financial duties" and still be deemed as a managerial or executive employee within a qualifying 
capacity, While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary 
would perform are only incidental to his/her proposed position, An employee who "primarily" performs tasks 
that are 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 [&N Dec. 593, 604 (Comm. 1988). 
In the present matter, a review of the record strongly indicates that, while the beneficiary carries out job duties 
that are indicative of a qualifying managerial or executive capacity employee, he also performs all other tasks 
that are necessary in order to ensure the petitioner's continued operation. The AAO does not dispute that the 
beneficiary plays a key role within the petitioning organization. However, the beneficiary's key role also 
requires him to carry out numerous non-qualifying operational tasks, including obtaining bids with purchasing 
organizations and negotiating distribution contracts. 
Here, the record does not show that the petitioner employed, either in-house or on a contractual basis, any 
sales, marketing, or administrative employees to carry out the petitioner's daily functions. As such, the only 
conclusion that can be made is that the beneficiary must engage in all the essential, yet non-qualifying, 
functions in order to ensure that the petitioner continues its normal business activity. While counsel points to 
evidence that shows the petitioner hired an additional employee after the Form [-140 was filed, this 
information is irrelevant in light of the petitioner's burden of having to establish eligibility at the time of 
filing. See 8 C.F.R. § 103.2(b)(12); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). The 
record indicates that the beneficiary was the petitioner's only employee at the time of filing. While the AAO 
can appreciate the petitioner's need to have the beneficiary perform a wide variety of non-qualifying tasks at 
this stage in its development, the petitioner's business needs cannot supersede the statutory provision that only 
those beneficiaries who allocate the primary portion of their time to tasks of a qualifying nature will merit 
classification as a multinational manager or executive. 
The AAO further notes 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 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. 
INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per 
curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (DD.C. 2003). Thus, in addition to 
considering the beneficiary's job description and the beneficiary'S placement in the petitioner's organizational 
hierarchy, the AAO simply cannot make a favorable finding if the petitioner is unable to establish that its 
staffing composition at the time of filing was sufficient to enable the petitioner to focus the primary portion of 
his time on tasks within a qualifying capacity. 
Lastly, with regard to counsel's reference to the petitioner's current approved L-1 employment of the 
beneficiary, the AAO notes that such approval cannot serve as guiding precedent for the outcome in the 
present matter. Each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof. As such, each petition must stand on its own individual merits. Evidence previously 
submitted in support of other petitions cannot determine the approvability of the petition at hand. Prior 
nonimmigrant approvals do not preclude USCIS from denying an extension petition. See e.g. Texas A&M 
Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant 
petition in no way guarantees that USCIS will approve an immigrant petition filed on behalf of the same 
beneficiary. USeIS denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-129 L-I 
petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; lKEA US v. US Dept. of Justice, 48 
F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petition was approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), ajj'd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.C!. 51 (2001). 
As the AAO finds that the petitioner has failed to establish that the beneficiary would be employed in the 
United States in a qualifying managerial or executive capacity, eligibility has not been established and the 
petition cannot be approved. 
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.