sustained EB-1C Case: Medical Devices

DATE: FEB 1 0 2012 
INRE: Petitioner: 
Beneficiary: 
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 
OFFICE: NEBRASKA SERVICE CENTER 
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. § I I 53(b)(I)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd 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 tile 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 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § I 03.5(a)(1 )(i) requires that any motion must be filed within 
30 days ofthe decision that the motion seeks to reconsider or reopen. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 
sustained. 
The petitioner is engaged in the development, manufacturing, distribution, sales and marketing 0 f 
bracing and support products and prosthetics. It seeks to employ the beneficiary as its Director of 
Sports Medicine. Accordingly, the petitioner endeavors to classify the beneficiary as an employment­
based immigrant pursuant to section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 
8 U.S.c. § I I 53(b)(I )(C), as a multinational executive or manager. 
The director denied the petition concluding that the petitioner failed to establish that all of the 
beneficiary'S employment abroad was within a qualifying managerial or executive capacity. The 
director noted that the position held by the beneficiary immediately prior to entering the United States 
was for less than a year, thus the position the beneficiary held prior to that, as Product Manager, must 
also be considered when determining eligibility. The director concluded that the position the 
beneficiary held as Product Manager was not a position in a qualifying managerial or executive 
capacity. On appeal, counsel disputes the director's findings and provides an appellate brief laying 
out the grounds for challenging the denial. 
Section 203(b) of the Act states in pertinent part: 
(I) Priority Workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any ofthe 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 I 
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 finn, 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)(I)(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. 
Page 3 
The issue addressed in this proceeding is whether the beneficiary was employed abroad ill a 
qualifying managerial or executive capacity. 
Section 101 (a)(44)(A) ofthe Act, 8 U.S.C. § IIOI(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. § IIOI(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 ofthe 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 examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly 
supports the pivotal role of a clearly defined job description, as 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), afJ'd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). USCIS reviews the totality 
of the record, which includes not only the beneficiary's job description, but also takes into account 
the nature of the petitioner's business, the employment and remuneration of employees, as well as the 
job descriptions of the beneficiary's subordinates, if any, and any other facts contributing to a 
complete understanding of a beneficiary's actual role within a given entity. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show 
that the beneficiary performs the high-level responsibilities that are specified in the defmitions. 
Second, the petitioner must show 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). 
On appeal, counsel for the petitioner explained that in the position of Product Manager for the foreign 
employer, the beneficiary supervised one Technical Lead position which "requires, at a minimum, a 
Bachelor's degree from a four-year college or university in Mechanical Engineering as well as two 
(2) to three (3) years of related work experience." Counsel explained that the Technical Lead 
position, supervised by the beneficiary, was "responsible for developing mechanical designs for 
prosthetic products and then managing their development," and "organized product protocols and 
performed laboratory, field testing, and evaluation of mechanical designs for prosthetic products to 
ensure compliance with performance specifications." The beneficiary held the position of Product 
Manager which required "management of the Prosthetic Knee product line, which included 
management of professionals performing the design, testing, and evaluation duties described above." 
Counsel also states that in addition to managing a professional Technical Lead position, the 
beneficiary also managed an essential department with the parent company abroad. Counsel states 
that the beneficiary "managed all aspects of the Prosthetic Knee product line, which included product 
development, marketing strategy, product life cycle, and new product launches." When the 
beneficiary held the position of Product Manager, the foreign company "Iaunl~he:d 
total net prosthetics sales "increased to nearly $104 million, and knee products 
$17 million under the direct management of the Beneficiary." Counsel further states 
beneficiary was "responsible for running the Prosthetic Knee department within the allocated budget, 
which required that he make decisions with respect to product launch timelines and sales and 
marketing efforts." Counsel explained that the beneficiary would work closely with sales and 
marketing professionals and "communicated with the 
including its 
The petitioner provided sufficient evidence that the beneficiary was employed abroad in a qualifYing 
managerial capacity. The AAO withdraws the director's decision and sustains the appeal. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely 
with the petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has been met. 
ORDER: The appeal is sustained.