dismissed EB-1C Case: Security Systems

U.S. Department of Iromeland Security 
20 Mass Ave , N W , Rrn 3000 
Wash~ngton, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER 
 DatddAR 0 4 2009 
- -- 
LIN 07 037 53324 
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: SELF-REPRESENTED 
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). 
John F. ~rissom, Acting 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 Florida corporation that is engaged in the business of selling and installing 
security alarm systems. The petitioner seeks to employ the beneficiary as its general manager. 
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 
the conclusion that the petitioner failed to establish that it would employ the beneficiary in a 
managerial or executive capacity. 
On appeal, the petitioner disputes the director's conclusion and submits a brief statement addressing 
the beneficiary's proposed employment. 
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 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. 5 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. § 1 101(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 October 23, 2006, which 
included general statements regarding the beneficiary's job responsibilities in his proposed position 
with the U.S. petitioner. The statement was accompanied by a number of supporting documents, 
including, inter alia, a more detailed percentage breakdown of the beneficiary's duties and 
responsibilities, the petitioner's organizational chart, and a number of the petitioner's quarterly wage 
Page 4 
reports for time periods directly prior to the date the Form 1-140 was filed. As the director included 
the job descriptions provided by the petitioner in the March 7, 2008 denial of the petition, this 
information need not be repeated in the present decision. With regard to the petitioner's 
organizational chart, the entity is depicted as having two managerial tiers and two lower levels of 
subordinates with one employee occupying each tier. The beneficiary is shown at the top of the 
petitioner's hierarchy, with an operations manager and a marketing manager as his direct 
subordinates. An office assistant is shown at the third level of the hierarchy and the accounting clerk 
is shown at the bottom level. The chart does not clearly establish who directly oversees the work of 
the office assistant and accounting clerk. 
After reviewing the petitioner's initial submissions, the director determined that the petitioner failed 
to establish eligibility. Accordingly, on August 10,2007, the director issued a request for additional 
evidence (WE) instructing the petitioner to provide, inter alia, a description of the beneficiary's 
specific job duties and a discussion of the beneficiary's subordinates, if any. Although the WE 
included instructions to provide a block diagram illustrating the petitioner's organizational hierarchy, 
the AAO acknowledges that such a document had been previously submitted as one of the initial 
supporting documents. 
In response, the petitioner provided a replica of the hourly and percentage breakdown representing 
the beneficiary's time allocation to the various duties and responsibilities within five main 
categories, including general management, sales and marketing, human resources, overall financial 
management, and logistics management. As previously noted, this breakdown has been restated 
verbatim in the director's decision and therefore need not be repeated in the AAO's current decision. 
However, the AAO will fully address the position description in its discussion below. 
The petitioner also provided an updated organizational chart listing seven positions, including two 
sales people that were not included in the previously submitted chart. The AAO notes, however, that 
the petitioner must establish its eligibility based on the facts that existed at the time the Form 1-140 
was filed; a petition cannot be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). In the 
present matter, the two sales positions that were 'included in the more recently submitted 
organizational chart do not appear to have been part of the petitioner's organizational hierarchy at the 
time of filing, but rather appear to have been hired after the petition was filed. As such, the AAO 
cannot take into account either sales position when considering whether the petitioner was able to 
relieve the beneficiary from having to primarily perform non-qualifying tasks at the time the petition 
was filed. It is noted that the more recently updated organizational chart also lists technicians, 
whose services the petitioner claims it subcontracts. However, the petitioner did not provide further 
information as to who the subcontractors are, nor were any invoices provided to establish that the 
petitioner was paying for the services of any subcontractors at the time the Form 1-140 was filed. 
Regardless, it appears that the organizational chart that was submitted initially in support of the 
Form 1-140 was likely to have been a more accurate representation of the petitioner's organizational 
hierarchy at the time of filing and will therefore be deemed more probative in determining the 
petitioner's eligibility for the immigration benefit sought herein. 
On March 7, 2008, the director issued a decision denying the petitioner's Form 1-140. As previously 
stated, the director included all of the job descriptions provided by the petitioner earlier in this 
Page 5 
proceeding. The director found that neither the job descriptions nor the supporting documentation 
establish that the petitioner was able to employ the beneficiary in a qualifying managerial or 
executive capacity as of the date the petition was filed. He further stated that portions of the job 
description mentioned responsibilities that could not be readily identified as being associated with 
qualifying tasks and further added that the beneficiary's duties and job responsibilities suggest that 
the beneficiary performs the tasks necessary to produce a product or to provide services, thereby 
indicating that the beneficiary could not be 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). 
On appeal, the petitioner argues that the director's decision is erroneous, asserting that an extensive 
job description and corporate documents were provided to establish that the beneficiary meets the 
statutory definitions of executive or managerial capacity. The petitioner further states that the 
beneficiary's job description meets the standard description provided by the U.S. Department of 
Labor (USDOL). The petitioner's arguments, however, are not persuasive and do not overcome the 
director's adverse decision. 
In examining the executive or managerial capacity of the beneficiary, U.S. Citizenship and 
Immigration Services (USCIS) will look first to the petitioner's description of the job duties. See 
8 C.F.R. 5 204.56)(5). The fact that the beneficiary's job description meets one of the standard job 
descriptions provided by the USDOL is of little probative value in determining whether the job 
duties that the beneficiary would actually perform fit the statutory definitions for managerial or 
executive capacity. See sections 101(a)(44)(A) and (B) of the Act. 
 In the present matter, the 
beneficiary's job description is provided through a series of five general categories, each of which is 
accompanied by a list of duties and responsibilities. However, a majority of the items listed under 
each of the main headings consist of broad job responsibilities that fail to convey an understanding 
of exactly what the beneficiary would be doing on a daily basis. For instance, under the fist heading 
of "General Management," to which the beneficiary would allot 40% of his time, the petitioner listed 
12 items, a number of which are discussed using terms like manage, supervise, and ensure. 
However, these terms are too general and require further definition of the actual underlying tasks 
that would be used to enable the beneficiary to manage, supervise, and ensure the desired end result. 
Without more detailed insight into the beneficiary's specific job duties, the AAO cannot gauge the 
nature of the tasks that would be entailed in managing and enforcing service expectations; managing 
cost, quality, schedule, and inventory activities; supervising personnel and verifying employee 
business conduct (both of which sound similar, but were not qualified with distinguishing factors); 
using management tools; ensuring good practices; and ensuring timely performance of contracts. 
Thus, at least eight out of 12 of the items listed under the first heading fail to translate into specific 
daily job duties. 
While the above analysis only addresses the first of five headings, the second category, "Sales & 
Marketing," to which the petitioner allotted 25% of the beneficiary's time, is also plagued with 
similar deficiencies. More specifically, only three out of the seven items listed to describe the 
beneficiary's role in sales and marketing cite any specific job duties. The remaining four items 
include the following: communicate, execute, and manage marketing programs; use strategies 
(which the petitioner did not define) to market and manage services; execute sales models and 
Page 6 
strategies; and develop pricing strategies. None of these items denotes specific tasks the beneficiary 
would engage in on a daily basis to ensure that the broad job responsibilities cited herein are met. 
The three remaining items under the sales and marketing heading, including conducting research and 
analysis to target customers, negotiating contracts, and resolving customer problems and complaints, 
are indicative of daily operational tasks and cannot be readily deemed as qualifying job duties. In 
light of this analysis and the analysis of the general management category, it appears that at least 
65% of the beneficiary's time would be comprised of job duties that are either undefined or ones that 
do not readily fit into the definition of managerial or executive capacity. This finding alone, without 
conducting further analysis of the three remaining categories, precludes a finding that the petitioner 
is eligible to classify the beneficiary as a multinational manager or executive, because, based on the 
information provided, the petitioner has failed to establish that the beneficiary would primarily 
perform tasks within a qualifying managerial or executive capacity. 
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. fj 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 entry to the United States as a nonimmigrant to work for the same employer. In the 
instant matter, the petitioner's description of the beneficiary's employment abroad is similarly 
lacking in sufficient detail regarding the beneficiary's specific day-to-day job duties as the 
description of the beneficiary's proposed employment in the United States. It is noted that merely 
reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient. In order to enable USCIS to determine whether the beneficiary's employment fits one of 
the relevant statutory definitions, the petitioner must first provide an adequate description of the 
beneficiary's job duties. Case law precedent has firmly established that the actual duties themselves 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). As the description of the beneficiary's past job 
duties lacks the necessary degree of specificity, the AAO cannot conclude that the beneficiary was 
employed abroad in a managerial or executive capacity. 
Second, 8 C.F.R. 9 204.5(j)(3)(i)(D) states that the petitioner must establish that it has been doing 
business for at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 9 204.5(j)(2) 
states that doing business means "the regular, systematic, and continuous provision of goods andlor 
services by a firm, corporation, or other entity and does not include the mere presence of an agent or 
office." In the present matter, the petitioner filed its Form 1-140 on November 20, 2006. While the 
record confirms that the petitioner is a retail operation, it does not contain sufficient evidence to 
establish that the petitioner was selling its products and services in the manner prescribed above during 
the relevant one-year period commencing November 20, 2005. In fact, while the petitioner has 
provided USCIS with a number of invoices showing the sale of its products, the earliest invoices in the 
current record of proceeding only date back to March 3,2006. There is no indication that the petitioner 
was selling its products and services on a "regular, systematic, and continuous" basis from November 
2005 through February 2006. The record also lacks sales invoices form September and October of 
2006, which also fall within the relevant one-year time period. It is noted that 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 
Page 7 
Treasure Craft of Calfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). Thus, due to the lack of 
sufficient documentation, the AAO cannot conclude that the petitioner was conducting business for 
the requisite time period and in the manner prescribed above. 
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), afd, 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. 
As a final note, with regard to the petitioner's previously approved L-1 employment of the 
beneficiary, the director's decision does not indicate whether he reviewed the prior approvals of the 
other nonimmigrant petitions. However, if the previous nonimmigrant petitions were approved 
based on the same unsupported and contradictory 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). 
Furthermore, 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.), afyd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
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. fj 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.