The Situation
Another law firm came to me to reverse an I-140 denial. The petitioner was a specialty restaurant operating in three locations, with about twenty-nine employees. The beneficiary, its Vice President, was sponsored for EB-1C classification as a multinational manager. He directed five managers, one of them the General Manager. The five directed three first-line supervisors. At the bottom, eighteen people cooked the food, served it, and cleaned up afterwards. The beneficiary sat three tiers above the dining room.
The real question before the Nebraska Service Center was whether a company this size is allowed to have a manager at all, for immigration purposes. Whether the regulations written for great white sharks apply equally to small fish.
The Denial
The denial ran to four pages. Almost two recited the regulations. A little over one quoted the beneficiary’s job description in full, the only substantive evidence of his duties. That left a single page of anything resembling argument, and what filled it was an argumentum verbosium: the argument that hopes to win by exhaustion rather than reason.
The examiner wrote that the beneficiary “appears” to perform many aspects of the day-to-day operations. That one word carried the denial: it let the examiner assert what the record did not show, and point to nothing that did. The same page faulted the beneficiary for “routine quality assurance operational activities” without naming one.
Then, having quoted the job description in full, the examiner reached two contradictory conclusions about it: not detailed enough to approve, detailed enough to deny. The decision moved from conclusion to premise, bypassing the analysis in between. And then the sentence itself:
“Additionally, assuming that the petitioner’s job descriptions were adequately detailed, the beneficiary’s responsibilities, nevertheless largely comprise of other duties or responsibilities for which the beneficiary primarily performs the task, which, by definition, qualifies as performing a task necessary to provide a product or provide services is not considered to be employed in a managerial or executive capacity.”
Come again, examiner 0306? Never mind. Pass the aspirin.
The Argument
A motion to reconsider asks the agency to find that its decision misapplied the law on the record already before it. 8 C.F.R. § 103.5(a)(3). This one had.
The standard directs the adjudicator to look first to the beneficiary’s actual duties, because the duties reveal the true nature of the employment. 8 C.F.R. § 204.5(j)(5); Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff’d, 905 F.2d 41 (2d Cir. 1990). Those duties described a Vice President three tiers above the people who did the work. The one duty that came near operations was his standing consultation with the General Manager, who reported to him with the sales and inventory figures he needed to make his decisions.
So I challenged USCIS to point to one: a single aspect of day-to-day operations, anywhere in the job description, that the beneficiary personally performs. The decision named none, because there were none to name. The theory underneath the denial was self-defeating in any case. If directing the General Manager is performing a task necessary to provide the company’s product, then no executive anywhere qualifies, because every executive’s decisions help the business produce something. That is not what the statute means by managerial or executive capacity. INA §§ 101(a)(44)(A), (B).
I also held the agency to its own rule. The decision leaned on the familiar principle that the assertions of counsel are not evidence. I asked it to apply the rule evenly: an examiner’s assertions, untethered from the record, are not evidence either. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988).
The Result
The motion was granted. The denial was reversed and the petition approved, about fourteen months start to finish. The petitioner’s record hadn’t changed between the denial and the approval. Only the reading of it did.