dismissed EB-1C Case: Computer Software

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
LIN 06 213 51495
Office: NEBRASKA SERVICE CENTER Date: a:r 1 0 2001
IN RE: 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:
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.
I- !~4--
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based visa petition. The
petitioner subsequently filed a motion to reopen or reconsider, which the director granted and ultimately
affirmed the original denial of the petition. The matter is now before the Administrative Appeals Office
(AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed the immigrant visa petition to classify the beneficiary as a multinational manager or
executive pursuant to section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C.
§ 1153(b)(1)(C). The petitioner is a corporation organized under the laws of the State of California that is
engaged in the production of computer software. The petitioner represents itself as a subsidiary of the
beneficiary's foreign employer, and seeks to employ the beneficiary as its chief executive officer/chief
technical officer.
The director denied the petition concluding that the petitioner had not established that the beneficiary had
been or would be employed by the foreign or United States entities in a primarily managerial or executive
capacity.
On appeal, counsel for the petitioner challenges the director's finding, stating that the beneficiary's job duties
represent employment in a primarily managerial or executive capacity. Counsel further contends that the
petitioner's organizational structure would be sufficient to support a primarily managerial or executive
position. Counsel submits a brief and additional evidence in support of the appeal.
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 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 or 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)(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.
Page 3
The first issue in this proceeding is whether the beneficiary would be employed by the United States entity in
a primarily managerial or executive capacity.
Section 101(a)(44)(A) ofthe Act, 8 U.S.c. § 1101(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 ftmction within the organization, or a department or
subdivision of the organization;
(iii) Has the authority to hire and fire or recommend those as well as other personnel actions
(such as promotion and leave authorization) if another employee or other employees are directly
supervised; if no other employee is directly supervised, ftmctions at a senior level within the
organizational hierarchy or with respect to the ftmction 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. § 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;
(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.
The petitioner filed the Form 1-140 on July 3, 2006 noting the beneficiary's proposed employment as the chief
executive officer/chief technical officer of its eighteen-person corporation, during which he would manage the
company's development team, approve all "key" decisions, and monitor the performance of the operations in
the United States and United Kingdom companies. In an appended June 20,2006 letter, the petitioner noted
the beneficiary's role in expanding the company's presence in the United States by increasing its staff and
Page 4
developing an East coast office, which would assume the company's sales and support functions from the
already-established California office.
In a separate statement, the beneficiary's role and "key responsibilities" were identified as the following:
To direct the global operation of [the foreign and United States entities], ensuring effective
communication and co-ordination of the operating companies in the US and UK, to allow
smooth operation and profitability. Identify and progress strategic partnerships. Lead the
development of both existing and new software products to promote increased sales and
customer retention.
• Agree budgets, sales and other perfonnance targets with the Managing Director (UK)
and Regional Manager (US). (2%)
• Monitor perfonnance of the UK and US organizations. (25%)
• Approve all key decisions. (3%)
• Manage the development team to ensure effective maintenance and development of
current software products. (20%)
• Identify areas in which new software modules and products can be developed to exploit
market opportunities. (5%)
• Co-ordinate and manage the design and implementation of new software. (20%)
• Identify and recruit software partners to allow quicker and more effective exploitation
of market opportunities where possible. (5%)
In an appended organizational chart, the beneficiary was depicted as overseeing the foreign and United States
organizations, which collectively employed sixteen workers, two of which were identified as United States
employees. The two employees were identified as occupying the positions of regional manager and support
analyst. In a second organizational chart, depicted on a separate page and dated December. 2005, the
petitioner was represented as employing three workers subordinate to the beneficiary who occupied the
positions of president, support analyst/testing coordinator, and regional manager south-east. Based on a
comparison of the two organizational charts, it appears that the employment of the petitioner's regional
manager was tenninated prior to the instant filing and that its president assumed the title and position of
regional manager.
On August 15,2006, the director issued a request for evidence instructing that the job description offered by
the petitioner in its original filing contained "broad" and "general" statements that were not sufficient to
establish the beneficiary's proposed employment in a primarily managerial or executive capacity. The
director requested that the petitioner submit a "detailed, comprehensive description" of the beneficiary's
employment in the United States entity addressing his specific job duties and the amount of time the
beneficiary would devote to performing each. Noting that the organizational chart depicted both the foreign
and United States entities, the director asked that the petitioner clarify how the beneficiary's time would be
divided between the two companies, and explain how the beneficiary would manage the United States
organization. The director also requested a description of the job titles, job duties, and position requirements
for each of the beneficiary's subordinate employees.
The petitioner's fonner counsel responded in a letter dated November 1, 2006 contending that the
beneficiary's employment in the United States would be primarily executive in nature. Counsel stated that in
Page 5
his proposed posItIon, the beneficiary is required to: interview and train new employees; expand the
petitioner's position in "the global field" through research of the United States market; set budgets and
monitor the performance of both the United States and foreign entities; identify new market opportunities;
make final decisions with respect to the petitioner's expenditures and operations; identify software
partnerships; and supervise the organization's employees.
In a separate letter, dated October 31, 2006, the petitioner distinguished the beneficiary's job duties in the
United States and United Kingdom, noting that the beneficiary would devote 60 percent of his time to job
duties specific to the United States organization, while 15 percent of his time would be occupied by tasks
related to the organization in the United Kingdom. The petitioner noted that the beneficiary would spend the
remaining 25 percent of his time performing as the chief technical officer of both organizations.
The petitioner delineated the beneficiary's job duties as chief executive officer from chief technical officer,
noting that as the company's chief executive officer, the beneficiary would dedicate 15 percent of his time to
such job duties as:
• Recruitment, promotion and changes to organizational structure (5%)
• Requests for unbudgeted expenditure and budgeted expenditure 'Over agreed
amounts (3%)
• Review any new legal agreements and variations to existing agreements (5%)
• Evaluate proposed alliances and third party products for resale (2%)
With respect to the beneficiary's responsibility of identifying United States software partners in order to
effectively exploit market opportunities, the petitioner noted that the beneficiary would devote 35 percent of
his time to the following associated job duties:
• Research the U.S. market for products complementary to [the petitioner's] own, via
the web and by talking to customers and prospective customers. (5%)
• Approach key strategic partners directly at a high level to open discussions about
mutual opportunities. (15%)
* * *
• Delegate approaches to other prospective partners to the President of [the
petitioning entity]. (5%)
* * *
• Evaluate proposed alliances and third party products for resale coming from either
direct approaches from third parties or from suggestions by employees with [the
petitioning entity] (5%)
• Guide pre-sale evaluation and oversee initial implementation of [the petitioner's]
software sold by partners, or partner software sold by [the petitioner], to ensure that
[the petitioner's] new customer will be a good reference site. Resources used from
[the petitioning entity] will be the Regional Sales Manager for New York, the
Page 6
Professional Services Manager and consultancy/support resources from [the
petitioner] in the U.S. and U.K. (5%)
The petitioner further noted the following responsibilities related to the beneficiary's role as chief executive
officer: interviewing candidates, 2%; product training, 3%; advising on customer relations issues, 5%; setting
budget, sales and performance targets, 5%; and monitoring the performance of the United States and foreign
organizations, 10%.
The petitioner explained that the beneficiary's additional role as chief technical officer included "reading,
web-based research and attending conferences and seminars," and that his specific job duties would include:
• Manage the development team to ensure effective maintenance and development of
current software products - this work is performed using remote communications,
email, telephone and web conferencing for software walkthroughs and team
meetings. (10%)
• Coordinate and manage the design and implementation of new software and
communications. (10%)
• Identify areas in which new software modules and products can be developed to
exploit market opportunities. (5%)
As the founder of [the foreign and petitioning entities[] and driving force behind [the
foreign entity's] product development over the last 15 years, it is essential that [the
beneficiary] is now able to drive product development from a U.S. perspective, as the
company has much larger growth opportunities in the U.S. Even without his full time
presence, they have established the company successfully in the U.S., running profitably
with a full time workforce of four U.s. citizens (with one vacancy) in California. By [the
beneficiary's] moving to the New York area, gaining this U.S. perspective and being readily
available to key partners and customers on the East Coast, as well as much more accessible
to [the petitioner's] office in California, he expects to greatly accelerate growth and
profitability.
The petitioner noted that while employed in the United States, the beneficiary would supervise the company's
president, as well as workers employed in the following positions: the managing director of the company in
the United Kingdom; a professional services manager; a yet unfilled position of software development team
leader; a senior software developer; and a software developer/consultant. The petitioner submitted an
organizational chart that depicted the referenced professional services manager as an employee of the United
States organization. The AAO notes, however, that the professional services manager was identified on the
original organizational chart as an employee in the United Kingdom. The organizational chart submitted in
response to the director's request for evidence also depicted the subordinate positions of sales/support
administrator and marketing manager as being occupied in the United States company, while the positions of
east and west account manager were noted as not yet being filled. Again, none of these positions were
identified on the petitioner's original organizational chart.
On November 15, 2006, the director issued a decision in which he concluded that the petitioner had not
demonstrated that the beneficiary would be employed by the United States entity in a primarily managerial or
executive capacity. The director outlined the list of submitted job duties, finding that while the job
Page 7
description "contain[s] some managerial level duties, [ ] other duties are insufficiently defined (such as how
[the beneficiary) will 'manage' the development team, or his specific duties in relation to design and
implementation of software) to demonstrate that they are actually managerial or executive in nature." The
director also concluded that some of the beneficiary's job duties are "functional in nature," such as his
research of new markets, communications with "partners to achieve sales agreements," identification of areas
for product development, and training of employees on products and customer relations issues. The director
also found that based on a comparison of the amount of time the beneficiary would devote to the foreign and
United States entities, it is not clear whether the petitioner's reasonable needs support a managerial or
executive position. Consequently, the director denied the petition.
The petitioner's former counsel filed a motion to reopen the director's decision on December 18, 2006,
challenging the director's finding and claiming that the beneficiary would be performing primarily executive
and managerial job duties. In her December 15, 2006 brief, counsel provided a "thorough job description" of
the beneficiary's proposed employment in the United States entity, submitted claims that the beneficiary
would be employed as both a manager and an executive. As counsel's brief is already part of the record, it
will not be entirely repeated herein. In a decision dated February 26, 2007 the director granted the motion,
yet ultimately determined that the petitioner had failed to demonstrate that the beneficiary would be employed
in a primarily managerial or executive capacity.
The petitioner's current counsel filed the instant appeal on March 30, 2007 contending that "the structure and
nature" ofthe petitioning entity would support the beneficiary in a primarily managerial or executive capacity.
In an attached appellate brief, dated March 29, 2007, counsel contends that the beneficiary would be
employed in both an executive and managerial capacity. In support of the beneficiary's eligibility for
classification as both a manager and an executive, counsel references portions of the job duties from the
already submitted job descriptions as evidence of satisfying the statutory definitions of "managerial capacity"
and "executive capacity." Counsel states that the beneficiary's purported employment as an executive is
further supported by the petitioner's organizational structure, "which shows his position at the pinnacle of the
multinational corporate hierarchy, managing and delegating functional duties to at least fifteen positions
under his supervision." As additional evidence of the beneficiary's managerial and executive authority,
counsel notes the beneficiary's role in the company's business dealings, specifically referencing a "major
agreement" between the petitioner and a Massachusetts-based company, QAS, to sell the petitioner's software.
Counsel also references and submits copies of the beneficiary's electronic mail log of correspondence from
January through March 2007, claiming that it "illustrates his daily activities in subjects relating to purely
managerial duties, such as staff hiring and pay, client interaction, direction/management of the development
team, advice to support staff, and budget and expenses."
Counsel contends that the petitioner's organizational structure demands the employment of a manager or
executive "because of the significant degree of overall coordination and management required between the
U.S. subsidiary petitioner in California and New York and its British parent company." Counsel instructs that
"the management of "remote employees" is a common practice particularly in the technology industry, and
explains that the beneficiary's placement in the New York office facilitates easier communications between
the California and United Kingdom offices, which have a time difference of 8 hours. Counsel submits a copy
of the petitioner's 2007 business plan update, which addresses its decision to assign the beneficiary to the
development of a New York office and to recruit sales, support and administrative staff.
-~-_. __ ._--~----------------~
Page 8
On appeal, counsel submits additional documentary evidence, including a 2007 organizational chart depicting
revisions in the company's staffing levels since the filing date and letters confirming the petitioner's business
relationship with QAS, as well as with a separate Florida-based company.
Upon review, the petitioner has not established that the beneficiary would be employed by the United States
entity in a primarily managerial or executive capacity.
The AAO emphasizes that the beneficiary's eligibility for classification as a manager or executive is based on
an analysis of the beneficiary's employment at the time of filing the immigrant visa petition. Case law
requires that a petitioner establish eligibility at the time of filing; a petition cannot be approved at a future
date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter ofKatigbak, 14 I&N
Dec. 45, 49 (Comm. 1971).
When examining the managerial or executive capacity of a beneficiary, United States Citizenship and
Immigration Services (USCIS) reviews the totality of the record, including descriptions of a beneficiary's
duties and his or her subordinate employees, the nature of the petitioner's business, the employment and
remuneration of employees, and any other facts contributing to a complete understanding of a beneficiary's
actual role in a business. The evidence must substantiate that the duties of the 'beneficiary and his or her
subordinates correspond to their placement in an organization's structural hierarchy; artificial tiers of
subordinate employees and inflated job titles are not probative and will not establish that an organization is
sufficiently complex to support an executive or manager position.
When analyzing 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. § 204.5(j)(5).
The AAO concurs with the director's observation that the job description initially offered with the Form 1-140
is not sufficiently detailed so as to establish the beneficiary's purported employment in a primarily managerial
or executive capacity. Similarly, the job description submitted in response to the director's request for
evidence does not clarify the beneficiary's role as a manager or executive.
The purpose of the request for evidence'is to elicit further information that clarifies whether eligibility for the
benefit sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to a request for evidence, a
petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its level of
authority within the organizational hierarchy, or its associated job responsibilities. Again, the petitioner must
establish that the position offered to the beneficiary when the petition was filed merits classification as a
managerial or executive position. Matter ofMichelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978).
While the petitioner's response to the director's request for evidence includes references to job duties noted in
the original job description, the time allocated to the specific tasks varies, thus raising questions as to the
employment capacity originally proposed to the beneficiary at the time of filing. Specifically, the beneficiary
is first represented on the job description as devoting the majority of his time to the following three areas:
monitoring the United States and foreign organizations, 25%; managing the development team, 20%; and
coordinating and managing the design and implementation of new software, 20%. In contrast, in its October
31, 2006 letter submitted in response to the director's request for evidence, the petitioner indicated that a
cumulative amount of 20 percent of the beneficiary's time would be devoted to managing the company's
development team and coordinating the design of new software, two tasks that were originally represented~
Page 9
consuming 40 percent of the beneficiary's time. Similarly, the beneficiary was identified as spending only 10
percent of him time monitoring the performances of the foreign and United States entities. It is incumbent
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent
objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
Because of the varying and limited statements submitted with respect to some of the beneficiary's job
responsibilities, the specific managerial or executive job duties ofthe beneficiary are unclear. For example, it
is not clear what specific managerial or executive tasks the beneficiary would assume in monitoring the
performance of the United States and foreign organizations. The AAO notes that in response to the director's
request for evidence, the petitioner simply stated the same job responsibility without providing additional
clarification. Also, the beneficiary's role as chief technical officer and his purported management of the
company's development team has not been explained or confirmed. This is particularly relevant considering
he was initially represented as spending a cumulative 40 percent of his time managing the development team
and coordinating and managing "the design and implementation of new software." Moreover, there is no
indication in the record that the petitioner, itself, maintains a "development team." Rather, it appears that the
development team employed by the foreign entity would perform these functions for the United States entity.
As a result, it is not clear who the beneficiary is actually managing with respect to this particular
responsibility. Case law dictates that a petitioner's blanket claim of employing the beneficiary as a manager
or executive without a description of how, when, where and with whom the beneficiary's job duties occurred
is insufficient for establishing employment in a primarily managerial or executive capacity. Fedin Bros. Co.,
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). The actual duties
themselves reveal the true nature of the employment. Id. at 1108.
Based on the petitioner's October 31, 2006 letter, the beneficiary would devote the most time, 35 percent, to
the specific task of identifying software partners in the United States and determining marketing
opportunities. This task was initially identified as consuming 5 percent of the beneficiary's time as the chief
executive officer of the United States corporation. The petitioner further indicated that the individual tasks
comprising this responsibility were: researching the United States market for complimentary products;
communicating and negotiating with "strategic partners"; delegating "approaches" to prospective partners;
evaluating "proposed alliances and third party products for resale"; and overseeing "pre-sale evaluation" and
the initial implementation of the petitioner's software products, which the petitioner represented as having
been sold by partners. For various reasons addressed in detail below, the AAO questions the beneficiary's
purported managerial or executive role with respect to this responsibility.
First, the petitioner repeatedly refers to "partners" that would be responsible for selling the petitioner's
software. The AAO acknowledges that the additional evidence submitted on appeal confirms the existence of
the petitioner's business relationship with QAS for the purpose of marketing and selling its products; however,
the relationship was not established until November 2006, or approximately four months after the original
filing. It is not clear who performed the east coast negotiations or sales for the petitioning entity until that
date, as the petitioner's regional managerl , who is based in California, is identified as merely managing the
1 The AAO again notes that depending on the referenced organizational chart, Robert Heidenreich was
employed at the time of filing as occupying the position of president or regional manager. For purposes of
this proceeding, the AAO will refer to Robert Heidenreich as the company's regional manager, as the
Page 10
sales and marketing functions. The AAO notes that the petitioner conceded in its October 31, 2006 letter its
efforts to recruit a regional sales manager for its New York location, as well as to procure "consultancy and
support resources in the region." Moreover, the petitioner's prior counsel admitted in her December 15,2006
brief submitted in support of the motion to reopen that the beneficiary "perfonns some functional sales duties
for prospective clients in the New YorklPhiladelphia/Boston area, pending recruitment of a Regional Sales
Manager for New York.,,2 Based on these representations, it is not clear whether the beneficiary's
communications with outside organizations for the purpose to obtaining corporate representation on the east
coast can be considered "high[-]level" or managerial or executive in nature, as suggested by the petitioner.
The beneficiary's additional and related responsibilities of personally researching the United States market via
the worldwide web and through communications with prospective customers for· complementary products,
overseeing the implementation of the company's software in new customer sites, product demonstrations, and
guiding "pre-sale evaluation[s]" further challenge his claimed employment in a primarily managerial or
executive capacity. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of
the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter ofRo,
at 591.
Additionally, as the sole employee in the petitioner's east coast office, and one of three employees working
for the petitioner in the United States, it is questionable whether the beneficiary would be supported in a
primarily managerial or executive capacity. Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. §
1l01(a)(44)(C), if staffing levels are used as a factor in determining whether an individual is acting in a
managerial or executive capacity, CIS must take into account the reasonable needs of the organization, in
light of the overall purpose and stage of development of the organization.
The AAO notes the existence of many unresolved discrepancies in the petitioner's staffing levels at the time
of filing the immigrant visa petition. On the Form 1-140, the petitioner represented a staff of sixteen
employees, yet in an appended organizational chart identified the employment of a regional manager and
support analyst in the United States. In a second organizational chart also submitted with the initial filing, the
petitioner identified the occupied positions of president, support analyst and regional manager as being
subordinate to the beneficiary in the United States corporation. In response to the director's request for
evidence, the petitioner submitted yet a third organizational chart depicting its staffing levels as of September
2006 and noting the employment of five employees in the United States, one of which was originally
represented as an employee the foreign entity. Despite the differing representations made by the petitioner,
for purposes of determining the beneficiary's employment capacity, the AAO will deem the regional manager
and support analyst, both of who were employed in the California office, as employees of the petitioning
organization at the time of filing3 and will not consider the revisions made to the petitioner's staffing levels
since the time of filing the Form 1-140. See Matter ofKatigbak, 14 I&N Dec. at 49.
petitioner initially indicated in the original job description that the beneficiary would discuss the company's
performance targets with the company's regional manager.
2 Counsel indicated that the functional sales tasks would consume only 10 percent of the beneficiary's time,
and that the beneficiary would be performing the "higher level functional duties" of developing business
relationships for sales and marketing with outside organizations.
, Despite the petitioner's reference to the employment of a south-east regional manager on a December 20~~ I
organizational chart submitted with the original filing, the petitioner later conceded that the poSition_.~
Page 11
Counsel contends on appeal that the structure of the United States organization demands the employment of
the beneficiary as the chief executive officer in order to coordinate and manage the California and New York
offices, as well as the foreign entity. Counsel states that the employment of the beneficiary in an executive
position is "evident in the structural organization of the company ... which shows [the beneficiary's] position
at the pinnacle of the multinational corporate hierarchy, managing and delegating functional duties to at least
fifteen positions under his supervision." Similarly, the petitioner's former counsel states on motion that "[t]he
nature of the [petitioner's] business underpins [the petitioner's] contention that [the beneficiary's) role is that
of an executive manager . . . [as) it is developing and selling original, specialist, data cleansing software,
employing a skilled staff in the U.S. (four of whom are U.S. citizens)."
In each claim, both the petitioner's current and former counsel is relying on the expanded staffing levels of the
petitioner. A critical analysis of the petitioning organization and the staffing levels maintained at the time of
filing creates doubt as to whether the petitioning entity would support the beneficiary in a primarily
managerial or executive capacity. In support of this observation, the AAO notes, in particular, counsel's
reference on appeal to portions of the petitioner's business plan, which addresses its need to have the
beneficiary "develop channels in [the New York) region and to recruit sales, support and administrative staff,"
as well as its methods of contacting and selling directly to customers by electronic mail or telephone. Again,
other than the beneficiary, the petitioner has not claimed to employ any workers in its New York office on the
date of filing. Also, the AAO again notes that at the time of filing, the petitioner had not yet developed any
business relationships with outside "partners" for the marketing and sale of its products. See Matter of
Katigbak, 14 I&N Dec. at 49 (requiring the petitioner to establish eligibility at the time of filing; a petition
cannot be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of
facts). As a result, it is not clear whether the petitioner's reasonable needs, particularly those concerning the
New York office, would be met through the services of its three-person staff, of which two are employed on
the West coast.
On appeal, counsel also focuses on the role of "remote employees" in the analysis of the beneficiary's
employment capacity. Counsel states that "remote management" is an accepted practice in the technology
industry and challenges that the beneficiary's presence in New York should not undermine his executive and
managerial employment. The AAO recognizes the concept of "remote management" and acknowledges that
the beneficiary may manage employees who are not within geographical proximity to the New York office.
However, while the record contains several organizational charts and an October 31, 2006 statement of the
beneficiary's subordinates, there is little clarification as to how the beneficiary is managing the various offices
and who the beneficiary was managing on the filing date, particularly since the staffing levels of each
organization have been revised with each new response by the petitioner. Again, although the beneficiary
was initially represented as monitoring the performance of the foreign and United States organizations, the
petitioner did not expound on the specific tasks associated with this responsibility. Going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
regional sales manager for New York had not been filled. It is not clear whether these are the same positions,
however, the record is devoid of documentary evidence confirming the employees of the petitioner at the time
of filing. Moreover, the petitioner's prior counsel concedes on motion that the beneficiary is the "first
employee on the East coast." Going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter of Sofjici, 22 I&N Dec. 158, 165
(Comm. 1998) (citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Page 12
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972».
In light of the above-noted inadequacies and discrepancies, the petitioner has not demonstrated that the
beneficiary would be employed in a primarily managerial or executive capacity at the time of filing of the
immigrant visa petition. The AAO notes that the petitioner is not restricted from filing a new 1-140
immigrant visa petition seeking classification of the beneficiary as a manager or executive. Based on the
above discussion, the appeal will be dismissed.
The second issue in this proceeding is whether the beneficiary was employed by the foreign entity in a
primarily managerial or executive capacity.
In. the June 20, 2006 letter submitted at the time of filing, the petitioner identified the beneficiary as having
occupied an executive position in the foreign entity, which required "lrnowledge of company specific client
base, markets, and fields of research." The petitioner did not provide additional evidence in support of the
beneficiary's overseas employment as a manager or executive of the foreign entity. ht an attached
organizational chart, the beneficiary was depicted as supervising the following tWelvesubordinate positions in
the foreign company: managing director, senior architect, technical lead, developer, administration controller,
accountant, sales manager, sales administrator, sales consultant, marketing manager, customer support
manager, and support analyst.
ht his August 15, 2006 request for evidence, the director instructed the petitioner of the inadequate account of
the beneficiary's job duties in the foreign entity, and requested a "detailed, comprehensive description of the
beneficiary's position abroad." The director directed the petitioner to define the specific job duties related to
the beneficiary's former position in the foreign company.
In her November I, 2006 letter, the petitioner's former counsel outlined the statutory requirements of
"executive capacity," and claimed that as the chief executive officer/chief technical officer of the foreign
entity, the beneficiary satisfied the relevant statute in that he: interviewed and trained employees; identified
and established new market opportunities; approved "key decisions";· set budgets, sales and performance
targets; monitored the company's performance; and, as a founding member of the foreign entity, received only
general supervision.
In the appended October 31, 2006 letter, the petitioner outlined the following job duties performed by the
beneficiary while employed in the foreign entity, which are the same as those initially provided for his
proposed employment in the United States entity:
• Agree budgets, sales and other performance targets with the Managing Director (UK)
and Regional Manager (US).
• Monitor performance of the UK and US organizations.
• Approve all key decisions.
• Manage the development team to ensure effective maintenance and development of
current software products.
• Identify areas in which new software modules and products can be developed to exploit
market opportunities.
• Co-ordinate and manage the design and implementation of new software.
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• Identify and recruit software partners to allow quicker and more effective exploitation
of market opportunities where possible.
In his November 15,2006 decision, the director concluded that the petitioner had not demonstrated that the
beneficiary was employed by the foreign entity in a primarily managerial or executive capacity. The director
noted that other than providing the same job description for the beneficiary's foreign employment as that
originally submitted for the beneficiary's proposed position in the United States, the petitioner had failed to
submit "information regarding the beneficiary's position abroad prior to his entry, despite being advised that
the prior description was insufficient." The director stated that absent additional documentation, the
beneficiary could not be deemed to have been employed as a manager or executive of the foreign entity.
Consequently, the director denied the petition.
In the subsequent motion to reopen, the petitioner's former counsel provided the following additional outline
of the job duties associated with each of the beneficiary's above-listed job responsibilities:
• Directs and monitors performance of the U.K. and U.S. organizations. (25%)
Monitor performance by reviewing reports provided on a weekly and monthly basis
showing:
1. [C]urrent management accounts, including profit and loss for the month,
quarter and year to date
2. [Slales for the month and quarter and pipeline (forecast) sales
3. Service Request summaries for the Help Desk System
4. [R]elease schedule for new releases, plus reviewing customer experience with
the current release.
The review led to discussions with relevant managers and sometimes subordinate
employees, where it is necessary to go into detail, to suggest ways to improve, or to
commend.
• Make or Approve all key decisions. (3%)
Recommendations for key decisions are submitted by the relevant manager/executive
by email for consideration and approved, modified, or rejected by email (Email folders
are stored locally and backed up centrally each day). Decisions that are referred to the
CEO include:
1. Recruitment, promotion, and any changes to organizational structure
2. Requests for unbudgeted expenditure and budgeted expenditure over agreed
amounts
3. Review any new legal agreements and variations of existing agreements
4. Evaluate proposed alliances and third party products for resale.
• Manage the development team to ensure effective maintenance and development of
current software products. (20%)
Managing the development team includes:
1. Reviewing reports provided on a daily and weekly basis showing Software
Issues outstanding by type and priority and Software Issues allocated by staff
member
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2. Reviewing project plan for project work (as opposed to maintenance) to gauge
reasonableness of estimates and progress against plan.
3. Delegating new work
4. Walkthroughs of design documents.
5. Specification of urgent maintenance tasks.
6. Spot checks of handover for completed tasks (which can include reviewing
program code for adherence to standards and maintainability).
7. Reviewing summary reports from automated test suites.
8. Evaluating recommendations for software productivity tool purchase and
deployment.
• Co-ordinate and manage policies for the design and implementation of new software.
(20%)
Coordinating and managing the design and implementation of new software
communications include:
1. Leading discussions about requirements with sales and marketing staff
2. Delegation of work to appropriate development staff
3. Walkthroughs of and requests for revisions to functional design documents.
• Agree budgets, sales and other performance targets with the Managing Director (U.K.)
and Regional Manager (U.S.). (2%)
This involves an iterative process carried our in the last quarter of each financial year,
relating to the next financial year. First, performance in the current year to date is
reviewed and compared with the budget for the current year. Next, the rolling three
year strategic plan is reviewed. In the [sic] light of these reviews, a budget for the
coming year for each organization is formulated. At organization and group level,
these are then reviewed with the relevant managers and with the company accountant.
Amendments are then made to the new budgets to ensure projected profitability at a
satisfactory level and acceptable cash flow.
• Identify areas in which new software modules and products can be developed to exploit
market opportunities. (5%)
Identifying areas in which software modules and products can be developed includes
reading, web-based research and attending conferences and seminars.
• Identify and recruit software partners to allow quicker and more effective exploitation
of market opportunities. (5%)
This involves identification of complementary products selling well into the same
market and discussion with the authors of those packages about bundling [the foreign
entity's] software in with their products, or actually programming in calls to [the
foreign entity's] component software.
Counsel accounted for the remaining 20 percent of the beneficiary's time, explaining that it was comprised of
"miscellaneous" interruptions and telephones calls.
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Counsel claimed that the beneficiary satisfied the statutory criteria for "executive capacity" in that he directed
the foreign company's management in the establishment of policies related to the business' marketing and
finance functions, supervised such professional employees as the company's managing director, accountant,
technical leader, senior software architect, and the United States company's regional manager, and established
new market opportunities and performance targets.
In his February 26, 2007 decision, the director again determined that the petitioner had failed to demonstrate
that the beneficiary was employed by the foreign entity in a primarily managerial or executive capacity.
While the director noted that counsel's statement on ~otion provided additional information regarding the
beneficiary's job duties in the foreign entity, he did not specifically explain why the petitioner failed to
demonstrate the beneficiary's former employment as a manager or executive of the foreign entity. When
denying a petition, a director has an affirmative duty to explain the specific reasons for the denial; this duty
includes informing a petitioner why the evidence failed to satisfy its burden of proof pursuant to section 291
of the Act, 8 U.S.C. § 1361. See 8 C.F.R. § 103.3(a)(1)(i).
On appeal, the petitioner's present counsel contends that the job duties performed by the beneficiary while
employed by the foreign entity were primarily managerial or executive in nature. Counsel broadly discusses
the beneficiary's former overseas employment in conjunction with his proposed employment in the United
States, stating that the previously provided job duties satisfy the statutory criteria of both "managerial
capacity" and "executive capacity." Counsel specifically notes the beneficiary's supervision over the foreign
company's managing director and accountant and his authority to direct the day-to-day operations of the
foreign organization.
Upon review, the petitioner has established that the beneficiary was employed by the foreign entity in a
primarily managerial or executive capacity.
When examining the executive or managerial capacity of the beneficiary, the AAO will look to the
petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). As instructed above, when analyzing the
employment capacity of the beneficiary, CIS will also review the totality of the record, including descriptions
of the job titles and job duties of the beneficiary's subordinate employees, the nature of the foreign company's
business, the employment and remuneration of employees, and any other facts contributing to a complete
understanding of a beneficiary's actual role in the organization.
An analysis of the additional job description submitted by the petitioner's former counsel on motion, in
conjunction with the foreign entity's staffing levels, demonstrates that the beneficiary was employed as a
manager or executive of the foreign entity. Counsel's supplemental job description provided detail of the
specific job duties performed by the beneficiary in his role as chief executive officer/chief technical officer in
the foreign entity, which was sufficient to establish his employment in a primarily managerial or executive
capacity. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v.
Sava, 724 F. Supp. at 1108. Also, in contrast to the petitioning entity, the record suggests that the foreign
organization maintained a subordinate staff sufficient to perform the day-to-day tasks of the foreign business
and to support the beneficiary in a primarily managerial or executive capacity. See QData Consulting, Inc. v.
INS, 293 F.Supp.2d. 25, 29 (D.D.C. 2003) (instructing that when analyzing the beneficiary's claimed
employment as a manager or executive, INS may consider evidence of a subordinate staff to determine
whether the beneficiary would be relieved from performing non-qualifying job duties). Accordingly, the
director's decision with respect to this issue will be withdrawn.
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The AAO recognizes that CIS previously approved an L-1A immigrant petition filed by the petitioner on
behalf ofthe beneficiary. It should be noted that, in general, given the permanent nature of the benefit sought,
immigrant petitions are given far greater scrutiny by CIS than nonimmigrant petitions. The AAO
acknowledges that both the immigrant and nonimmigrant visa classifications rely on the same definitions of
managerial and executive capacity. See §§ 101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44).
Although the statutory definitions for managerial and executive capacity are the same, the question of overall
eligibility requires a comprehensive review of all of the provisions, not just the definitions of managerial and
executive capacity. There are significant differences between the nonimmigrant visa classification, which
allows an alien to enter the United States temporarily for no more than seven years, and an immigrant visa
petition, which permits an alien to apply for permanent residence in the United States and, if granted,
ultimately apply for naturalization as a United States citizen. Cf §§ 204 and 214 of the Act, 8 U.S.c. §§ 1154
and 1184; see also § 316 of the Act, 8 U.S.C. § 1427.
In addition, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate
burden of proof; each petition must stand on its own individual merits. See 8 C.F.R. § !03.8(d). The prior
nonimmigrant approval does not preclude CIS from denying an extension petition. See e.g. Texas A&M Univ.
v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant
petition in no way guarantees that CIS will approve an immigrant petition filed on behalf of the same
beneficiary. CIS denies many 1-140 petitions after approving prior nonimmigrant 1-129 L-1 petitions. See,
e.g., QData Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. ofJustice, 48 F. Supp. 2d at
22; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. at 1103.
Moreover, if the previous nonimmigrant petition was approved based on the same unsupported and
contradictory assertions that are contained in the current record, the approval would constitute material and
gross error on the part of the director. The AAO is not required to approve applications or petitions where
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See,
e.g. Matter ofChurch Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v.
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Due to the lack of
required evidence in the present record, the AAO finds that the director was justified in departing from the
previous nonimmigrant approval by denying the present immigrant petition.
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir.
2001), cert. denied, 122 S.Ct. 51 (2001).
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. Here, that burden has not been met. Accordingly, the
director's decision will be affirmed and the petition will be denied.
ORDER: The appeal is dismissed.