dismissed EB-1C Case: Product Distribution

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal pnvg,q, 
PUBLIC COpy 
FILE: 
INRE: 
. TEXAS SERVICE CENTER 
u.s. Department of Homeland Security 
U. S, Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529·2090 
U. S. Citizenship 
and Immigration 
Services 
Date: 
N8V 0 3 2010 
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. § 1153(b)(l)(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 I-290B, Notice of Appeal or Motion. 
The fee for a Form I-290B is currently $585, but will increase to $630 on November 23,2010. Any appeal or 
motion filed on or after November 23,2010 must be filed with the $630 fee. Please be aware that 8 C.F.R. 
§ 103.5(a)(l)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to 
reconsider or reopen. 
erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 Florida corporation that seeks to employ the beneficiary as its president. Accordingly, the 
petitioner endeavors to classifY the beneficiary as an employment-based immigrant pursuant to section 
203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § IIS3(b)(1)(C), as a multinational 
executive or manager. The director concluded 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 conclusion, asserting that the decision was arbitrary and capricious. 
Counsel contends that the petitioner's description of the proposed employment establishes that the beneficiary 
would be employed in both a managerial and an executive capacity. 
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)(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 petitioning United States employer would employ the 
beneficiary in a primarily managerial or executive capacity. 
! The record shows that the same petitioner filed three prior Form 1-140 petitions. The fIrst Form 1-140, with receipt no. 
SRC0422352967, was denied on July 11,2005; the second Form 1-140, with receipt no. SRC0600452017, was denied on 
February 8, 2006; and the third Form 1-140, with receipt no. LIN0701652670, was denied on April 10, 2008. The record 
shows that the petitioner did not appeal any of the three previously issued denials. 
Page 3 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The tenn "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. 
The record shows that the petitioner submitted a letter dated April 18, 2008 in support of its Fonn 1-140. The 
petitioner provided the following statements with regard to the beneficiary's proposed position as president of 
the U.S. entity: 
As President of our corporation, approximately 30% of [the beneficiary]'s work week 
involves establishing and developing our business and financial goals and policies and 
overseeing the achievement of these business and financial goals and policies, and 
-Page 4 
establishing our corporation's sales goals and strategies together with hiring and firing 
employees and setting salaries. Approximately 20% of his work week involves coordinating 
all activities between sales and administration, and approximately 30% of his work week 
involves supervising and evaluating the work performance of two supervisory personnel who 
are the Administrator and Marketing/Sales Managers. The balance of [the beneficiary],s 
work week, involves day-to-day activities such as telephonic conferences with distributors 
and manufacturers where the Petitioner purchases products from and telephonic conferences 
with its customers. 
The petitioner added further that the beneficiary is the head of the corporation and has full discretionary 
authority with regard to daily decision making. 
The director did not find that the petitioner's supporting evidence to be persuasive in establishing that the 
beneficiary would be employed in the United States in a qualifying managerial or executive capacity. 
Accordingly, the director issued a decision dated December 17, 2008 denying the petition. Focusing on the 
petitioner's quarterly wage reports, the director noted that two out of four quarters for which reports were 
submitted showed limited personnel, thereby indicating greater involvement from the beneficiary in 
performing non-qualifying tasks. 
On appeal, counsel asserts that because the director failed to ask for additional information regarding the 
beneficiary's job duties, his adverse determination regarding the beneficiary's employment capacity in his 
proposed position was arbitrary and capricious. Counsel focused on the beneficiary's supervisory duties in 
overseeing and evaluating the work of two supervisory subordinates. 
Counsel's assertions on appeal are unpersuasive and failed to establish that the beneficiary would allocate the 
primary portion of his time to performing managerial- or executive-level tasks. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). The AAO will then consider this 
information in light of the petitioner's organizational hierarchy, the beneficiary's position therein, and the 
petitioner's overall ability to relieve the beneficiary from having to primarily perform the daily operational 
tasks. In the present matter, the record lacks a comprehensive description of the beneficiary's day-to-day job 
duties. Although the petitioner provided a job description with time allocations in its support letter, the 
information provided consisted of vague job responsibilities rather than a delineation of specific tasks that 
convey a meaningful understanding of how the beneficiary spends his time. For instance, merely stating that 
the beneficiary spends 30% of his time establishing business and financial goals and policies provides no 
insight into the underlying daily job duties. In other words, what actions does the beneficiary undertake to 
determine the goals that must be met and how does the beneficiary decide on the strategic means for meeting 
those goals? Published case law has determined that 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), affd, 905 F.2d 41 (2d. 
Cir. 1990). The petitioner was equally vague in stating that 20% of the beneficiary's time would be spent 
coordinating sales and administrative activities. Again, the petitioner listed no actual tasks nor provided an 
explanation to clarify what specific activities are involved and what types of coordinating duties the 
beneficiary plans to undertake. 
Page 5 
The record also lacks sufficient evidence to establish the petitioner's continued availability to maintain an 
adequate support staff, which would relieve the beneficiary from having to primarily focus on the 
performance of daily operational tasks. Although the director's analysis was based on documents that 
establish the petitioner's staffing during the one-year period directly prior to the date the Form 1-140 was filed, 
the petitioner has had ample opportunity to provide more recent documentation on appeal to show exactly 
whom it employed at the time the petition was filed. As stated above, aside from the petitioner's description 
of the beneficiary's proposed job duties, the AAO also looks to the petitioner's staffing and organizational 
structure to gauge the extent to which the petitioner is capable of employing the beneficiary in a managerial or 
executive capacity. Such analysis is permitted, as 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 (D.D.C. 2003). 
Thus, when a petitioner claims, as in the present matter, that some portion of the beneficiary'S time would be 
allocated to overseeing the work of others, it is proper and necessary to verify the petitioner's claim. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Soffici, 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 does not provide 
sufficient evidence to establish that the petitioner would be adequately staffed with support personnel who 
assume the burden of daily operational tasks and allow the beneficiary to allocate the primary portion of his 
time to tasks within a qualifying managerial or executive capacity. 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 of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
In summary, the record in the present matter lacks the detailed job description that is required by regulation 
and fails to establish that the petitioner has the need or the ability to employ the beneficiary in a qualifying 
managerial or executive capacity. Although the AAO has taken into account the beneficiary's position title 
and placement within the petitioner's organizational hierarchy, a detailed job description and adequate staffing 
are both critical factors that must be considered when determining whether the beneficiary would primarily 
perform tasks within a qualifying capacity. Here, the petitioner has not demonstrated that it has reached a 
level of organizational complexity wherein the hiring/firing of personnel, discretionary decision-making, and 
setting company goals and policies constitute significant components of the duties that the beneficiary would 
perform on a day-to-day basis. Based on the evidence furnished, it cannot be found that the beneficiary 
would be employed primarily in a qualifying managerial or executive capacity. For this reason, the petition 
may not be approved. 
Finally, the petitioner makes numerous references to its previously approved L-1 employment of the 
beneficiary. As a preliminary matter, the AAO notes 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 the nonimmigrant petitions to determine the approvability of the petition at hand in 
the present matter. The approval of a nonimmigrant petition in no way guarantees that uscrs will approve 
Page 6 
an immigrant petition filed on behalf of the same beneficiary. USCIS denies many 1-140 immigrant petitions 
after approving prior nonimmigrant 1-129 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. 1103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approvals 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.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
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.