sustained EB-1C Case: Audio Technology

I + identifying data deleted to U.S. Department of Homeland Security 
20 Mass Ave N.W., Rm. 3000 
Prevent c~early unwarrante~ 
 Washington, DC 20529-2090 
bvasiian of personal priva) 
PUBLIC COPY 
 u.S. citizenship 
and Immigration 
Office: NEBRASKA SERVICE CENTER Date: 
LIN 07 060 50083 
 JAN O 6 2009 
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. 9 1153(b)(l)(C) 
IN BEHALF OF PETITIONER: 
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. 
John F. Grissom, Acting chief 
b 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The AAO will withdraw the decision of the director and approve the petition. 
The petitioner, a California corporation, develops audio signal processing systems and manufactures 
professional equipment to implement these technologies in the motion picture broadcasting and 
music recording industries. It seeks to employ the beneficiary as its marketing director, consumer 
electronics 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 petitioner claims that it is the 
parent of, the claimed foreign employer of the beneficiary located in 
Australia. 
The director denied the petition, finding that the petitioner had failed to establish that the beneficiary 
was employed abroad in a primarily managerial or executive capacity. On appeal, counsel contends 
that the director committed three "key legal errors'' and mischaracterized facts related to establishing 
whether the beneficiary was engaged in a primarily managerial or executive capacity. In support of 
this contention, counsel submits a brief and additional evidence. 
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): 
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 the firm, corporation or other legal entity, or an affiliate 
or subsidiary of that entity, and 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 that indicates that the alien is to be employed in the 
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United States in a managerial or executive capacity. Such a statement must clearly describe the 
. duties to be performed by the alien. See 8 C.F.R. 8 204.5(j)(5). 
The issue in this matter is whether the beneficiary was employed abroad in a primarily managerial or 
executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 4 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. 8 1101(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; 
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(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 a letter of support dated December 18, 2006, the petitioner claimed that the beneficiary had been 
employed abroad in a managerial capacity fi-om June 2004 until his entry into the United States on 
July 9,2006. The petitioner described the beneficiary's position abroad as follows: 
In his previous senior managerial position at [the foreign entity], he had full 
managerial responsibility over the management of [the petitioner's] product, brand 
and campaign developments. He led the creation and marketing of support brand 
launches, product promotion, and business objectives for [the petitioner's] licensing 
division. He coordinated business development in key geographical locations to 
support product design, brand strategy, and brand positioning. 
In this supervisory managerial position, [the beneficiary] established development 
goals for his group that translated into performance objectives for each member. In 
this senior managerial position, [the beneficiary] had significant personnel 
management duties for a direct report, a managerial level employee. He supervised 
and controlled the work of the Marketing Communications Manager, including 
assigning tasks according to his knowledge and work experience. This employee 
possesses a Master's degree in his respective field. He had authority over personnel 
actions such as hiring, firing[,] compensation reviews, and promotions. As a Director 
of Marketing, Licensing Division, [the beneficiary] functioned at a senior level in our 
organizational hierarchy. 
To his merit, [the beneficiary] had full managerial responsibility over setting policy 
and strategy for the Marketing Group and the Licensing Division as it pertains to the 
[petitioner's] product brand development. The value of this function to our 
organization was over several million. [The beneficiary] played an essential role in 
the development and management of Marketing Group and therefore operated at a 
senior level with respect to the function that he managed. He exercises his discretion 
over the day-to-day operations of this essential hnction. As a Director of Marketing, 
[the beneficiary] established goals and policies to ensure that the company's 
objectives were met in the Licensing Division under his direction. He established and 
determined policy goals consistent with the company's strategic business 
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development and objectives. 
 He also directed and administered a budget of $1 
million for the management of brand development, and licensing and pricing 
development. He was responsible and accountable for the results of the marketing 
and the licensing division. 
The petitioner concluded by stating that the beneficiary reported directly to the Vice President and 
the General Manager. 
The director found the initial evidence insufficient to establish that the beneficiary had been 
employed abroad in a primarily managerial or executive capacity. Consequently, a request for 
evidence was issued on July 18, 2007. In the request, the director required the petitioner to submit a 
job description for the beneficiary which highlighted with more specificity his duties, in addition to 
documentation supporting the amount of time he devoted to each identified duty. Additionally, the 
petitioner was requested to submit an organizational chart showing the beneficiary's position within 
the organizational hierarchy. 
In a response dated August 23,2007, the petitioner addressed the director's requests. Regarding the 
beneficiary's duties, the petitioner provided a lengthy and detailed overview of beneficiary's duties, 
which is summarized below: 
Management of the petitioner's product, brand and campaign developments, 
including setting policy and strategy for the Marketing Group and the Licensing 
Division as it pertains to the petitioner's product brand development. Average 
percentage of time spent on performing this job duty: 30% 
Led the creation and marketing of support brand launches, product promotion, 
and business objectives for the petitioner's Licensing Division. Average 
percentage of time spent on performing this job duty: 25% 
Coordinated business development in key geographical locations to support 
product design, brand strategy, and brand positioning. Average percentage of 
time spent on performing this job duty: 30% 
Established development goals for his group that translated into performance 
objectives for each member. Average percentage of time spent on performing this 
job duty: 15% 
Supervised and controlled the work of Marketing Communications Manager. The 
average percentage of time spent performing this job duty is included with duties 
a, b, c and d above. 
Page 6 
In addition, the petitioner submitted an organizational chart which indicated that the beneficiary had 
one person, the Marketing Communications Manager, who reported to him directly. The petitioner 
further indicated that the beneficiary "also managed several external resources like consultants and 
agencies, to carry out his job duties and deliver results." 
On October 13, 2007, the director denied the petition. Specifically, the director concluded that a 
preponderance of the beneficiary's duties appeared to have been associated with the selection and 
direction of outside agencies. Moreover, although the evidence indicates that the beneficiary 
oversaw one subordinate employee, the director concluded that this alone was insufficient evidence 
to demonstrate that the beneficiary would be relieved from performing non-qualifying duties. The 
director concluded that the beneficiary appeared to be more akin to a first-line supervisor than a 
bona-fide managerial employee. 
On appeal, counsel claims that the director committed key legal errors in denying the petition. 
Specifically, counsel contends that the beneficiary's position abroad was in fact managerial in 
nature, and addresses the qualifications of the beneficiary's subordinate in relation to the beneficiary 
role in the company. Counsel also addresses the role of outside companies contracted to work for 
the foreign entity. Finally, counsel addresses the beneficiary's qualifications in relation to the 
governing regulations. 
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. 5 204.5Cj)(5). The definitions of executive 
and managerial capacity each have two parts. First, the petitioner must show that the beneficiary 
performs the high level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 
1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Both counsel and the petitioner provided a lengthy overview of the beneficiary's duties in support of 
the petition and in the response to the request for evidence. The description of duties provided 
specific examples of the beneficiary's responsibilities, and demonstrated that the beneficiary's duties 
complied with the 
 statutory definitions of managerial and executive capacity. 
 See sections 
lOl(a)(44)(A) and (B) of the Act. Specifically, the petitioner provided an overview of a series of 
products called Audistry, and claimed that the beneficiary was primarily responsible for developing 
strategies for marketing this product globally. Additionally, and more importantly, the petitioner 
explained that the beneficiary would execute the above-stated job duties by utilizing three external 
companies retained by the foreign entity to provide essential professional-level services necessary 
for the petitioner's successful marketing of Audistry. 
petitioner, the beneficiary oversaw one full-time managerial employee, namely, 
who in turn directed and supervised the work of these three external companies in 
performing market research, advertising, and other related services necessary for the global 
expansion of this product. 
 The petitioner provided an organizational chart demonstrating Mr. 
position in the organizational hierarchy directly below the beneficiary, as well as letters, 
service agreements and invoices in support of the relationship between the petitioner and these three 
external entities. Moreover, this documentation evidences the working relationship between the 
petitioner and these three entities, and evidence on appeal specifies that as directly 
responsible for communication and supervision of these entities. Therefore, the petitioner's claim 
that approximately $600,000 of the petitioner's $1.2 million marketing budget was allocated to the 
allocation for Audistry, which the beneficiary oversaw through the supervision of 
has been substantiated. 
Additionally, the record indicates that the beneficiary's supervision of emonstrates 
his employment in a primarily managerial capacity. Although the beneficiary is not required to 
supervise personnel, if it is claimed that his duties involve supervising employees, the petitioner 
must establish that the subordinate employees are supervisory, professional, or managerial. See $ 
101(a)(44)(A)(ii) of the Act. The petitioner submits documentation of various 
degrees on appeal, which include a master's degree in marketing management from the University of 
Mumbai, a bachelor of arts degree from the University of Bangalore, and a diploma in advertising 
and marketing from the Xavier Institute of Communications. The petitioner also alleges throughout 
the record that is a professional employee in charge of sub-contracted companies who 
globally market the petitioner's product, and therefore relieves the beneficiary form directly 
engaging in the marketing of the Audistry product. 
In the instant case, the petitioner has submitted documentary evidence establishing s 
educational credentials. In addition, the petitioner claims that a bachelor's degree or above is 
required fors position as marketing communications manager, and it submits an in- 
house job description of the position of marketing communications manager, which indicates that the 
educational requirements for the position include a bachelor's degree or above, as well as a 
preference for a marketing degree and at least five years of functional marketing experience. Mr. 
resume is also submitted, which indicates that he has more than fifteen years of prior 
marketing experience in managerial positions with companies such as Panasonic. Therefore, the 
AAO is satisfied that this evidence demonstrates that the beneficiary oversaw a professional 
employee while working for the foreign entity abroad. 
The director concluded that the beneficiary acted as a "fiontline supervisor" and was directly 
involved in the day-to-day functions of the company. However, a careful review of the foreign 
entity's organization, its global marketing strategy for the Audistry product, and the fact that half of 
the foreign entity's current advertising budget was allocated to this one specific project indicates that 
Page 8 
the beneficiary was not merely a marketing or sales representative actively engaged in the promotion 
of the product. Rather, the evidence clarifies that the beneficiary delegated the marketing goals and 
strategies to the three external companies through as a liaison, who in turn oversaw 
the work of these companies and reports back to the beneficiary. Therefore, the beneficiary was 
relieved from performing the marketing and sales functions, as discussed above, to produce and 
promote the petitioner's Audistry product. 
For the reasons set forth above, the petitioner has demonstrated that the beneficiary was employed 
abroad in a primarily managerial capacity. Accordingly, the appeal will be sustained. 
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. 5 1361. Here, the petitioner has sustained that 
burden. 
ORDER: 
 The decision of the director is withdrawn and the petition is approved.