dismissed EB-1C Case: Telecommunications

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
IUBLIC Ct)JlV 
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 
DATE: MAR 2 9 2012 OFFICE: TEXAS SERVICE CENTER FILE:_ 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(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, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
(tOO-"", 
'. Perry 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 Puerto Rican corporation that seeks to employ the beneficiary as its technical operations 
manager. 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. 
§ l153(b)(1 )(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement which was executed on July 20, 2009 by 
Pedro del Cuardro, the company's president. The petitioner also provided the beneficiary'S resume, which 
included a description of the beneficiary'S foreign and proposed employment. 
The director reviewed the petitioner's submissions and determined that the Form 1-140 did not warrant 
approval. The director therefore issued a request for additional evidence (RFE) dated December 22, 2009 
informing the petitioner of various evidentiary deficiencies. The director instructed the petitioner to provide a 
list of the beneficiary'S job duties with the foreign entity and the amount of time he allocated to each task. 
The petitioner was also asked to provide the foreign entity's organizational chart that corresponds with the 
beneficiary'S employment abroad. 
The petitioner provided a response that contained the requested documentation. 
After reviewing the record, the director concluded that the petitioner failed to establish that the beneficiary 
was employed abroad in a qualifying managerial or executive capacity. The director therefore issued a 
decision dated March 23, 2010 denying the petition. 
On appeal, counsel asserts that the beneficiary's position abroad was in the role of a function manager who 
did not oversee the work of in-house employees, as the foreign entity relied on outside contractors to provide 
many of the company's services. Counsel stresses the discretionary authority that the beneficiary had in 
hiring and firing independent contractors, developing the business, designing telecommunications systems, 
and overseeing the company's operations. Counsel emphasizes the beneficiary's autonomy in executing his 
duties and asks the AAO to consider the reasonable needs of the foreign entity 
The AAO finds that counsel's arguments are not persuasive and fail to overcome the director's denial. It is 
noted that the petitioner's submissions have been reviewed and those documents that are relevant to the key 
issue in this matter will be fully addressed in the discussion below. 
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 
-Page 3 
under this subparagraph, has been employed for at least 1 year by a fIrm or 
corporation or other legal entity or an afftliate 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 to be addressed in this proceeding is the benefIciary's employment capacity in his prior 
employment with the foreign entity. SpecifIcally, the AAO will examine the record to determine whether the 
petitioner submitted suffIcient evidence to establish that the beneficiary was employed abroad in a qualifying 
managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.c. § llOl(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 10 1 (a)(44)(B), provides: 
Page 4 
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. 
As a preliminary matter, the AAO notes that counsel's reliance on unpublished AAO decisions is misplaced. 
While 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all u.s. Citizenship and 
Immigration Services (USCIS) employees in the administration of the Act, unpublished decisions are not 
similarly binding. Moreover, counsel has failed to provide evidence to establish that the facts of the instant 
petition are analogous to those in the unpublished decisions cited in the appellate brief 
Next, while counsel is correct in pointing out that USCIS must take into account the petitioner's reasonable 
needs when considering staffmg size, those needs do not serve to override the petitioner's legal burden of 
having to establish that the beneficiary's position abroad was one that required the beneficiary to primarily 
perform duties of a qualifying managerial or executive nature. Thus, if the foreign entity's reasonable needs 
were such that required the beneficiary to allocate the primary portion of his time to the performance of non­
qualifying tasks, the petitioner would not meet the statutory requirements, which require that the employee 
primarily perform tasks that are in a managerial or an executive 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 performed abroad were only incidental to his 
position with the foreign entity. 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 lOl(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 list of job duties and time allocations that the petitioner provided in response to the 
RFE indicates that the primary portion of the beneficiary'S time was allocated to non-qualifying tasks such as 
maintaining current and potential client relationships, preparing paperwork, identifying and resolving client 
concerns, preparing status reports, designing special projects, and providing technical support and training. 
While the beneficiary'S autonomy and discretionary authority are clearly relevant to this discussion of the 
beneficiary's employment capacity, the matter ultimately cannot be decided without giving due consideration 
to the tasks the beneficiary performed and the amount of time he allocated to the qualifying tasks versus the 
non-qualifying ones. 
Counsel's use of the term function manager to describe the beneficiary's role is understandable to the extent 
that the beneficiary was not required to supervise a subordinate staff. However, the petitioner's description of 
the beneficiary's daily job duties must demonstrate that the beneficiary manages the function rather than 
-Page 5 
performs the duties related to the function. Here, the tasks mentioned above indicate that the beneficiary was 
indeed responsible for performing a number of non-qualifying functions and it was those functions that 
consumed the primary portion of the beneficiary's time. While considering anyone task, by itself, may not 
lead to an adverse conclusion, when the non-qualifying tasks are considered cumulatively, the sum total of 
their time allocations indicates that the beneficiary spent the primary portion of his time performing job duties 
that were necessary to produce a product or to provide services. Therefore, regardless of the beneficiary's 
autonomy and discretionary authority in his role with the foreign entity, the AAO cannot conclude that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity. On the basis of this 
finding, the petition cannot be approved. 
Additionally, while not previously addressed in the director's decision, the AAO concludes that the job 
description the petitioner provided with regard to the beneficiary's proposed position in the United States 
does not establish that the beneficiary would be employed in a qualifying managerial or executive capacity. 
The petitioner provided a job description that cites numerous non-qualifying tasks that are not accompanied 
by time allocations. The AAO therefore cannot conclude that the beneficiary would allocate his time 
primarily to the performance of tasks in a managerial or executive capacity. 
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), affd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
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.