dismissed EB-1C Case: Specialty Construction

MATTER OF F-M-USA INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 15, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a company engaged in the sale and installation of specialty mosaic, marble, tile, and 
wood designs, seeks to permanently employ the Beneficiary as its "Project Management Specialist" 
under the first preference immigrant classification for multinational executives or managers. 
Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This 
classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United 
States to work in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that it will employ the Beneficiary in a managerial capacity. 
On appeal, the Petitioner submits additional evidence, asserts that the Director placed undue 
emphasis of the size of the petitioning company, and maintains that the Beneficiary will manage an 
essential function of the organization. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has 
been doing business for at least one year. See 8 C.F.R. § 204.50)(3). 
Matter of F-M-USA Inc. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The sole issue addressed by the Director is whether the Petitioner established that it would employ 
the Beneficiary in a managerial capacity in the United States.1 Specifically, the Petitioner claims 
that it will employ the Beneficiary as a function manager. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). 
The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section 101 ( a)( 44 )(A)(ii) of the Act. If a petitioner claims that a 
beneficiary will manage an essential function, it must clearly describe the duties to be performed in 
managing the essential function. In addition, the petitioner must demonstrate that "(1) the function 
is a clearly defined activity; (2) the function is 'essential,' i.e., core to the organization; (3) the 
beneficiary will primarily manage, as opposed to perform, the function; ( 4) the beneficiary will act 
at a senior level within the organizational hierarchy or with respect to the function managed; and ( 5) 
the beneficiary will exercise discretion over the function's day-to-day operations." Matter of G­
lnc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
When examining the managerial capacity of a given beneficiary, we will look to the petitioner's 
description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of the job 
duties, we examine the company's organizational structure, the duties of a beneficiary's subordinate 
employees, the presence of other employees to relieve a beneficiary from performing operational 
duties, the nature of the business, and any other factors that will contribute to understanding a 
beneficiary's actual duties and role in a business. In the case of a function manager with no direct 
subordinates, other factors considered may include a beneficiary's position within the organizational 
hierarchy, the depth of a petitioner's organizational structure, the scope of a beneficiary's authority and 
its impact on a petitioner's operations, the indirect supervision of employees within the scope of the 
function managed, and the value of the budgets, products, or services that a beneficiary manages. See 
Matter ofZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). 
A. Duties 
Based on the definition of managerial capacity, the Petitioner must first show that the Beneficiary 
will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (9th 
1 The Petitioner did not claim that the Beneficiary would be employed in the United States in an executive capacity. 
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Matter of F-M-USA Inc. 
Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the Beneficiary will 
primarily engaged in managerial duties, as opposed to ordinary operational activities alongside the 
company's other employees. See Family Inc. v. USCJS, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d at 1533. 
At the time of filing, the Petitioner provide a very general description of the Beneficiary's duties as 
"project management specialist," noting that he will "serve as the company's local 'Maestro' and 
expert working with the architects and engineers in the creation of [company] projects." The 
Petitioner stated that he would ensure that project installations conform to the parent company's 
artistic design intentions, methodology and quality standards, and that he will provide guidance to 
the company in its efforts to develop, oversee and train a base of U.S. technicians and installers. 
In a request for evidence (RFE), the Director requested that the Petitioner explain whether the 
Beneficiary will be employed as a personnel manager or as a function manager, and provide "an 
explanation of the specific daily tasks that are involved with the completion of each of the 
beneficiary's proposed duties." 
In response to the RFE, the Petitioner provided a lengthier overview of the Beneficiary's duties in 
support of its claim that he would be employed as a function manager, but did not respond to the 
Director's request for a breakdown of his specific day-to-day duties. The Petitioner stated that the 
"function" of the project management specialist position is "to direct and oversee the logistics and 
installation of each of our unique projects," according to contractual expectations. The Petitioner 
emphasized that this function is essential because "the sole purpose" of the company is to create and 
install customized art or construction projects consistent with the parent company's brand and 
quality standards. 
The Petitioner explained that the Beneficiary will manage the installation and logistics functions by 
overseeing project timelines, assessing project deadlines, and determining specialty materials 
needed, staffing requirements, and any related project adjustments. The Petitioner emphasized that 
"even when he may be supervising installation technicians, the intricacy and complexity of the 
mosaic and stone work that [the company] does, means that he is primary managing the essential 
function of ensuring the nature of the work completed matches the traditional craftsmanship of the 
[Petitioner's] brand." 
The Petitioner further stated that the Beneficiary operates at a senior level within the company, as he 
reports only to the company vice president and president and is "consulted in the strategic planning 
of specific project contracts," by providing input on logistics and installation needs. The Petitioner 
also noted the Beneficiary's impact on "key operational components of the company such as our 
laboratory operations abroad and our overall business planning." Finally, the Petitioner stated that 
the Beneficiary has discretion over day-to-day operations of the logistics and installation function, 
including the ability to hire and fire workers, determine materials suppliers, determine logistics for 
materials delivery, approving delivery time of materials or projects from overseas, and determining 
project completion goals. 
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Matter of F-M-USA Inc. 
In the denial decision, the Director emphasized that the Petitioner's response to the RFE did not 
provide the requested level of detail or convey an meaningful understanding of what the Beneficiary 
will be doing on a daily basis in support of its claim that he will primarily manage an essential 
function. The Director also noted a lack of evidence that the Petitioner has sufficient staff to 
perform non-managerial activities associated with the products and services it provides. 
On appeal, the Petitioner submits a breakdown of the Beneficiary's duties indicating that he allocates 
25% of his time to "planning and resource allocation," 40% of his time to "project oversight," 25% 
of his time to "monitoring and evaluation," and 10% of his time to evaluating the Petitioner's final 
product.2 
The Petitioner explains that the Beneficiary's "planning and resource allocation" duties require him 
to: provide input to pre-bid estimates regarding material needs, staffing needs and project timing; 
provide input regarding initial project costs considering duration of work and material and staffing 
needs; collaborate with designers, engineers, or architects based on knowledge of the company's 
proprietary methods and techniques; and to schedule and prioritize multiple projects and monitor 
their milestones. The "workflow" chart for the position also includes "manufacturing planning" 
duties that include monitoring manufacturing activities that occur in Italy and strategic planning for a 
future U.S.-based laboratory. 
The Petitioner has not explained how the Beneficiary's responsibility for providing input to pre-bid 
estimates and project costs qualifies as a managerial duty, as these activities, as well as his 
responsibility for collaborating with designers and architects, appear to rely on his technical 
knowledge of the company's products, as well as his artistic training in Italian mosaic design. While 
we do not doubt that these contributions are valuable to company management during the pre-bid 
and contract negotiation phase, we cannot determine that providing material and staffing estimates or 
providing design recommendations are managerial functions. The Beneficiary has not been shown 
to have the authority to negotiate, approve, or sign sales contracts for individual projects and does 
not appear to be the party responsible for approving final plans. Further, the Beneficiary's 
"manufacturing planning" responsibilities are generalized and do not provide sufficient detail for us 
to categorize these tasks as managerial in nature. Finally, although the Beneficiary's responsibility 
for prioritizing projects indicates a certain level of discretion, the Petitioner has not established that 
his "planning and resource allocation" duties as a whole are primarily managerial in nature. 
The Petitioner states that the Beneficiary will allocate the largest portion of his time to project 
oversight ( 40% ), which requires him to approve material delivery schedules, ensure laborers meet 
installation deadlines, determine installation methods and materials, ensure compliance with 
company proprietary methods, approve field measurements needed to prepare drawings, and to 
coordinate the project order with the parent company's laboratory. Most of these tasks are activities 
2 The Petitioner submits two different versions of the Beneficiary's job description on appeal. One version is in a letter 
signed by its vice president, and the other version is in chart titled "Project Management Specialist Workflow." The 
chart does not include all duties stated in the vice president's letter, and includes tasks that the vice president does not 
mention. As an officer of the company signed the letter, we find that it has greater probative value. 
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Matter of F-M-USA Inc. 
necessary for the Petitioner to provide its services and cannot be deemed managerial duties. 
Notably, the Beneficiary appears to be the only employee of the company who has this high degree 
of hands-on involvement with the day-to-day activities required to execute the company's 
installation projects. 
Similarly, the Beneficiary's monitoring and evaluation responsibilities, requiring 35% of his time, 
include on-site inspections to monitor project progress and final product, reporting change order 
issues and providing guidance on their impact, tracking and reporting on project costs, and 
approving laborers assigned by the contractor company, with the authority to hire and fire contract 
staff. The Petitioner does not claim that anyone other than the Beneficiary is available to serve as 
on-site supervisor for contracted installers and has not established that this area of responsibility 
involves managerial, rather than first-line supervisory, authority over the installation function. The 
Petitioner's mosaic installation projects may be more complex than other construction projects and 
rely on the Beneficiary's knowledge of and experience with the company's artistic designs and 
methods, but the Petitioner has not shown that on site supervision of tile and mosaic installation 
activities performed by contractors equates to managing a function. 
While performing non-qualifying tasks necessary to produce a product or service will not 
automatically disqualify a beneficiary as long as those tasks are not the majority of a beneficiary's 
duties, a petitioner still has the burden of establishing that a beneficiary will "primarily" perform 
managerial duties. See section 101(a)(44) of the Act. Whether a beneficiary is a "function" manager 
turns in part on whether the petitioner has sustained its burden of proving that their duties are 
"primarily" managerial. See Matter ofZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). 
The Petitioner initially characterized the position as a local expert with valuable knowledge of the 
parent company's products and techniques, and that description is consistent with the nature of his 
duties. While the Beneficiary would exercise discretion over installation of the company's mosaic 
and tile projects, his duties as described are not primarily managerial in nature. 
B. Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, we take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. See section 10l(a)(44)(C) of the Act. 
At the time of filing in January 2017, the Petitioner stated that its number of current U.S. employees 
is "3-120 depending on project." The Petitioner submitted an organizational chart showing that the 
Beneficiary reports to the company vice president, who, in tum, reports to the president. The chart 
identifies an administration employee, legal staff, a CPA, an engineer, an architect, and a "regional 
VP Bus Dev" who also report to the vice president, but most of these employees or contractors are 
not otherwise documented in the record. The chart indicates that the Beneficiary supervises 
"customs brokers for specialty materials," "3-35 installers," a "site project manager," and 
"scaffolding" workers. Although requested in the RFE, the Petitioner did not provide copies of its 
payroll summary, IRS Forms W-2 or 1099, or copies of quarterly tax returns to corroborate the 
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Matter of F-M-USA Inc. 
staffing illustrated in the organizational chart. Given the Petitioner's claim that it has "3-120" 
employees, it is reasonable to determine that the Beneficiary, the vice president, and the president 
are likely the three individuals who are regularly employed. 
The Petitioner did provide invoices from a contractor ( ) which had 
provided scaffolding workers and other workers for one of the Petitioner's projects. The Petitioner 
has not provided that the contractor provided its own site manager or that the Beneficiary supervised 
a site project manager on this or any other project (although such position was included on the 
organizational chart). The Petitioner also submitted a summary of U.S. projects the Beneficiary had 
overseen to date, noting that one project had two workers/installers, two had three workers, one had 
35 workers, and one upcoming project would have five or six workers. 
On appeal, the Petitioner emphasizes we should consider the value of the budgets, products, or 
services that a beneficiary manages, consistent with Matter of G-. The Petitioner highlights 
contracts for three projects which ranged from $233,000 to $1.5 million in value, and notes that the 
terms of the contracts demonstrate that "the Project Manager Specialist is assigned duties that make 
him responsible for the legal liability of the entire company at the specific project." In this regard, 
the Petitioner points to contract terms indicating that it is responsible for the "means, methods, 
techniques and sequences of its work," and notes that the Beneficiary is charged with ensuring that 
the mosaic and marble art work is installed according to the company's proprietary techniques. The 
Petitioner also emphasizes that "[ d]ue to the unique nature of the product, it is not a role that can 
easily be filled by, for example, a general construction project manager, many whom, have no 
experience with the manufacture or installation methods of the traditional Italian mosaics sold by 
[the Petitioner's] group." However, the fact that the position may require knowledge that is not 
commonly held among construction supervisors or managers does not elevate the position to one that 
is primarily managerial. 
The Petitioner also argues that the Beneficiary acts at a senior level within the organizational 
hierarchy, as the vice president and president rely upon his knowledge of the parent company's 
methods and materials. It appears that the Beneficiary is the third most senior employee in a 
company that may have only three employees. The Petitioner mentions the other positions identified 
on the organizational chart, noting that they support the Beneficiary with day-to-day tasks, but, as 
noted the record does not include evidence of payments made to these claimed employees. In 
addition, the Petitioner mentions that its parent company in Italy and affiliate in United Arab 
Emirates support the U.S. team, and allow the Beneficiary to "exercise substantial discretion over 
the day-to-day activities of the essential function or more precisely, of each project in the United 
States." However, the Petitioner does not elaborate as to how the foreign employees relieve the 
Beneficiary from performing non-managerial duties in the United States during installation projects. 
The Petitioner correctly observes that we must take into account the reasonable needs of the 
organization and that a company's size alone may not be the only factor in determining whether the 
Beneficiary is or would be employed in a managerial or executive capacity. See section 
101(a)(44)(C) of the Act. However, it is appropriate to consider the size of the petitioning company 
in conjunction with other relevant factors, such as the absence of employees who would perform the 
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Matter of F-M-USA Inc. 
non-managerial or non-executive operations of the company. Family Inc. v. USCIS, 469 F.3d 1313 
(9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Here, as noted, the Petitioner did not submit evidence to document the actual size of the company. 
While the Petitioner established that contractors or foreign entity staff perform some functions, it has 
not corroborated that it has the structure illustrated in its organizational chart. Further, our decision 
here is based on a finding that the Beneficiary's actual duties, as described in the record, are not 
primarily managerial in nature, rather than based on the size of the company. The reasonable needs 
of a petitioner will not supersede the requirement that a beneficiary be "primarily" employed in a 
managerial or executive capacity as required by the statute. Brazil Quality Stones v. Chertojf, 531 
F.3d 1063, 1070 n.10 (9th Cir. 2008). 
The Petitioner has established that the Beneficiary fills an important role in the company and 
exercises some discretion over the company's installation projects, but the Petitioner has not shown 
that the duties he will perform are primarily managerial in nature. The Petitioner appears to argue 
that any tasks that do not involve actually creating, transporting, or installing the mosaic artwork 
should be considered managerial. We disagree. Overall, many of the Beneficiary's duties, as 
described in the record, are first-line supervisory and operational activities rather than managerial 
tasks. 
The fact that the Beneficiary oversees the Petitioner's mosaic and tile installation projects as the 
resident expert in the parent company's techniques and on-site supervisor does not necessarily 
establish his eligibility for classification as a multinational manager. By statute, eligibility for this 
classification requires that the duties of a position be "primarily" managerial in nature. Section 
101(A)(44)(A) of the Act. Even though the Beneficiary exercises some discretion in how the 
company's projects are implemented, the Petitioner did not establish that he will be employed as a 
function manager. 
III. BENEFICIARY'S EMPLOYMENT ABROAD 
Although not addressed in the Director's decision, we find that the record contains insufficient 
evidence to establish that the Beneficiary was employed abroad in a managerial capacity for at least 
one year in the three years preceding his entry to the United States as a nonimmigrant. 
The Beneficiary was admitted to the United States as an L-lB nonimmigrant intracompany 
transferee in a specialized knowledge capacity in 2011, received an extension of L-1 B status in 
2014, and was then granted L-lA classification as a managerial employee in 2016.3 The Petitioner 
3 With respect to the Beneficiary's prior L-IA approval, we note that if the previous nonimmigrant petition were 
approved based on the same evidence contained in the current record with respect to the offered U.S. position, the 
approval would constitute an error on the part of the Director. We are not required to approve applications or petitions 
where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. Matter of 
Church Scientology Int'/, 19 I&N Dec. 593, 597 (Comm'r 1988). Further, we note that a Beneficiary who entered the 
United States in L-18 status can later be granted L-1 A classification even if he or she never worked in a managerial or 
executive capacity abroad. There is a significant difference between a non immigrant L-1 A visa classification, which 
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Matter of F-M-USA Inc. 
indicates that the Beneficiary was employed abroad as a project management specialist responsible 
for supervising imaging and laboratory technicians at the parent company's headquarters laboratory, 
as well as installers at project sites. The evidence is insufficient to establish that he was employed as 
a function manager or that he acted as a senior level in the foreign company's hierarchy as claimed. 
The foreign entity's organizational chart also includes a "manufacturing master" and an "installation 
master" as part of its "design team" and these positions were senior relative to the Beneficiary's 
position. Although it appears that the Beneficiary may have supervised installation projects on a 
larger scale while employed abroad, the description of his duties is similar to that provided for the 
proposed U.S. position, with the same deficiencies addressed above. 
Moreover, we have reviewed the Beneficiary's G-325, Biographic Information, submitted with his 
concurrently filed Form I-485, Application to Register Permanent Residence or Adjust Status. The 
Beneficiary stated that his last position with the foreign entity was as a "Mosaicist," which is not 
consistent with the Petitioner's claim that he was employed in a managerial capacity as a project 
management specialist prior to his transfer to the United States as a specialized knowledge 
employee. For these additional reasons, the petition cannot be approved. 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that it will employ the Beneficiary 
in a managerial capacity in the United States or that the Beneficiary was employed abroad in a 
managerial capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of F-M-USA Inc., ID# 1704198 (AAO Oct. 15, 2018) 
allows a foreign national to enter the United States temporarily, and an immigrant E-13 visa petition, which permits a 
foreign national to apply for permanent residence in the United States. See, e.g.,§§ 204 and 214 of the Act;§ 316 of the 
Act. 
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