dismissed EB-1C Case: Computer Systems Design

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Y-A- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 5, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of computer systems design services, seeks to permanently employ the 
Beneficiary as its chief executive officer under the first preference immigrant classification for 
multinational executives or managers. See Immigration and Nationality Act (the Act) 
section 203(b )(1 )(C), 8 U.S.C. § 1153(b )(1 )(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director, Nebraska Service Center, denied the petitiOn. The Director concluded that the 
evidence of record did not establish that the Beneficiary has been employed abroad in a managerial 
capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred by 
not considering a letter previously submitted with an earlier nonimmigrant petition. The Petitioner 
submits a copy of that letter and previously submitted materials. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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 the alien seeks to 
enter the United States in order to continue to render services to the same 
Matter qfY-A- LLC 
employer or to a subsidiary or affiliate thereof in a capacity that is managerial 
or executive. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The regulation at 8 C.F.R. § 204.5G)(3) states: 
(3) Initial evidence-
(i) Required evidence. A petition for a multinational executive or manager must 
be accompanied by a statement from an authorized official of the petitioning 
United States employer which demonstrates that: 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside 
the United States for at least one year in a managerial or executive 
capacity by a firm or corporation, or other legal entity, or by an affiliate 
or subsidiary of such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same 
employer or a subsidiary or affiliate of the firm or corporation, or other 
legal entity by which the alien was employed overseas, in the three years 
preceding entry as a nonimmigrant, the alien was employed by the entity 
abroad for at least one year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by 
which the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at 
least one year. 
II. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary has been employed abroad in a managerial capacity. The Petitioner does not claim that 
the Beneficiary has been employed in an executive capacity. Therefore, we restrict our analysis to 
whether the Beneficiary has been employed in a managerial capacity. 
If the Beneficiary is already in the United States working for the foreign employer or its subsidiary 
or affiliate, then the regulation at 8 C.F.R. § 204.5G)(3)(i)(B) requires the Petitioner to submit a 
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Matter ofY-A- LLC 
statement from an authorized official of the petitioning United States employer which demonstrates 
that, in the three years preceding entry as a nonimmigrant, the Beneficiary was employed by the 
entity abroad for at least one year in a managerial or executive capacity. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "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. 
A. Evidence of Record 
The Petitioner filed Form 1-140 on January 20, 2015. The Petitioner identified the Beneficiary's 
foreign employer as 
The Petitioner submitted a copy of an undated letter from president of the foreign 
company, originally written in support of an earlier petition filed to extend the Beneficiary's L-1 A 
nonimmigrant status. stated that the Beneficiary had been working as the foreign 
company's "[a]ssistant general manager since 2005, over seeing [sic] the whole company. He 
manages the administrative services, human resources, operations, policies and procedures, 
accounting, etc. through the managers under his supervision."
1 
1 
U.S. Department of State records show that the Beneficiary applied for a B-2 visitor's visa at the U.S. Consulate in 
China, on April 4, 2012. On July 14, 2013, he applied for an L-1 intracompany transferee visa at the same 
consulate. On both occasions, the Beneficiary identified his then-current employer as 
but he also stated that he previously worked as a software engineer or programmer for a different 
company, from August or September 2005 to February 2012. On 
the April 2012 application, the Beneficiary claimed no management role with 
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Matter ofY-A- LLC 
The Director issued a request for evidence (RFE), asking the Petitioner to submit detailed 
information regarding the Beneficiary's duties abroad and those of his subordinates. 
In response, the Petitioner resubmitted a copy of letter, a list of 98 employees of the 
foreign company, and an organizational chart for the foreign company. The chart did not show all 98 
employees, but did show the company's management structure: 
General Manager 
General Manager Assistant [the Beneficiary]~ 
I 
Deputy General Manager Office Manager Accounting Manager 
Hardware Design Manager LProduction Line Manager 
Software Program Manager Sales Manager 
E Port 
Program Manager 
Hardware Maintain Manager 
The Petitioner also submitted job descriptions for the Beneficiary and the managers named on the 
organizational chart, to be discussed below. 
The Director denied the petition concluding that the Petitioner did not establish that the Beneficiary 
had been employed in a managerial capacity abroad. In denying the petition, the Director found that 
the Petitioner's organizational chart did not show that the Beneficiary had any subordinates, and that 
the Beneficiary's job description was insufficient to establish that he performed primarily managerial 
duties. 
On appeal, the Petitioner submits a copy of a letter previously submitted in support of a 
nonimmigrant petition filed on the Beneficiary's behalf. The Petitioner states that this letter contains 
Instead, he described his duties as "software design." He did claim to be a "general manager assistant" on the 
July 2013 application, but the information on each of these applications is inconsistent with claim that the 
Beneficiary worked for the company as a manager since 2005. 
Also, travel records indicate that the Beneficiary spent 332 out of 573 days in the United States between February 26, 
2012, and September 20, 2013, when he began working for the Petitioner in the United States. Therefore, if the 
Beneficiary actually assumed his claimed managerial role with the foreign entity in 2012, and not in 2005 as asserted, it 
is not evident that the Beneficiary spent the required year working abroad for the foreign company prior to his entry into 
the United States on September 20, 2013, as required by 8 C.F.R. § 204.5(j)(3)(1 )(B). While we are not making an 
adverse determination based on this information obtained from other government agencies, the Petitioner may need to 
address this information in any future petition filed by the Petitioner on the Beneficiary's behalf. 
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Matter ojY-A- LLC 
more details about the Beneficiary's position abroad, and that the Director should have taken that 
letter into consideration. The Petitioner also submits copies of materials previously submitted in 
response to the RFE. 
2. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary was employed 
abroad in a managerial capacity 
The Director's denial rested on two specific findings. First, "[t]here are no employees listed directly 
under the beneficiary" on the foreign entity's organizational chart. Second, the job description 
submitted in response to the request for evidence did not list any identifiably managerial duties. 
The Petitioner states that "a simple misunderstanding/error of the organizational chart" created the 
impression that the Beneficiary had no subordinates. The Petitioner states that "the block for the 
beneficiary ... should have been directly underneath the General Manager" instead of off to the 
side. The Petitioner asserts that the Beneficiary had authority over every employee of the foreign 
company except for the general manager. 
The Petitioner's explanation is plausible, particularly in light of assertion that the 
Beneficiary supervised "the managers." Still, the Petitioner must show not only that the Beneficiary 
had the required level of authority, but also that his duties were primarily managerial or executive, 
rather than operational tasks similar to those performed by lower-ranking employees.2 
Here, the Beneficiary's job description comes into play. The Petitioner's description of the job 
duties must clearly describe the duties to be performed by the Beneficiary and indicate whether such 
duties are in a managerial or executive capacity.3 
The general manager assistant job description submitted in response to the RFE reads as follows: 
• Updates job knowledge by participating in educational opportunities; 
• Reading professional publications; maintaining personal networks; participating in 
professional organizations. 
• Accomplishes organization goals by accepting ownership for accomplishing new 
and different requests; 
• Exploring opportunities to add value to job accomplishments. 
2 See, e.g., Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, Inc. v. INS, 940 F.2d 1533. 
3 See 8 C.F.R. § 204.5(j)(5). 
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Matter ofY-A- LLC 
The Director correctly found that the above job description was inadequate. It does not describe any 
specific tasks or establish that the Beneficiary had any authority over other employees or any function 
of the company. 
On appeal, the Petitioner does not explain or elaborate upon the job description quoted above. Instead, 
the Petitioner states that letter included a 
detailed job description of the Beneficiary's 
foreign position, and that the Director erred by "only quot[ing] a small paragraph" from the letter. The 
Petitioner submits what it calls "a copy of the previously submitted letter." That letter, however, does 
not match the letter submitted with the petition or in response to the RFE. It was not in the record when 
the Director issued the decision, and therefore the Director could not have considered it at that time. 
The letter submitted with the petition, and again in response to the RFE, referred on its first page to 
"Extension [of] L-1 A Status." The letter submitted on appeal appears to be an earlier document, 
referring to a "Petition for L-1 A Status." This letter was not in the record at the time the Director 
denied the decision.4 
The newly submitted letter breaks the Beneficiary's former duties into five categories, with the 
approximate percentage of time devoted to each: 
• Establishes and formulates departmental policies, procedures, long-term goals and objectives 
(10%) 
• Directs and coordinates the formulation of financial programs to provide funding for new or 
continuing operations and projects, to maximize returns on investments, and to increase 
productivity (20%) 
• Leads the management team in exploring and seeking new business opportunities and 
establishing business relationship with new vend[o]rs, suppliers and customers (30%) 
• Evaluates performance and contribution of the managerial personnel for compliance with 
established policies and objectives of the company (30%) 
• Reports to the president and the board of directors on a regular basis (1 0%) 
A paragraph of additional information followed each of these elements. For example, after the fourth 
item listed above, stated that the Beneficiary "was the primary leader in the recruitment of all 
the deputy general managers, and he also supervised the hiring process of the administrative manager 
and accounting manager, among others." 
The job description encompasses elements of a managerial role, such as hiring authority and oversight 
over lower-level managers. The description, however, is entirely inconsistent with the four-part 
description submitted in response to the RFE (and again on appeal). 
4 In making a determination of statutory eligibility, USCIS is limited to the information contained in the record of 
proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). The record of the Beneficiary's nonimmigrant proceeding is not combined 
with the record of the immigrant proceeding. 
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Matter ofY-A- LLC 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
Like the Beneficiary's job description, those of his claimed subordinates raise questions. For 
example, the stated duties of the deputy general manager do not appear to have any relation to the 
operation of a computer hardware and software company. Instead, they appear to be dictionary 
definitions of the various uses of the word "deputy": 
• Someone authorized to exercise the powers of a sheriff in emergencies 
• A person whose immediate supervisor is a senior figure within an organization and 
who is empowered to act as a substitute for this superior 
• A parliamentary representative in certain countries 
• A member ofthe lower chamber of a legislative assembly 
• An assistant with power to act when his superior is absent 
The description for the e-port program manager appears to derive from promotional material for human 
resources software: 
• Capture details essential to your organization and make 
• Job descriptions more consistent. 
• Create job descriptions within a formal, automated, HR 
• Managed process where those most familiar with the job define the content. 
• Manage all of your job descriptions from a central, shared online repository. 
• Ensure all employees are aware of their job responsibilities and have signed-off on 
their updated job description. 
• Link job descriptions to job requisitions, performance appraisals or competency 
assessment forms. 
• Automatically reflect changes made to the job description in corresponding talent 
management forms. 
The above anomalies raise serious doubts about the origin of the job descriptions, and those doubts are 
not confined to the descriptions quoted above.5 The Petitioner has not explained how the quoted job 
descriptions relate to the operation of a computer hardware and software company, and there is no 
reason to assume that this is the case only for those three descriptions. For example, the Petitioner did 
not explain how the deputy general manager's stated duties of "a parliamentary representative in certain 
5 Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA I 988). 
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Matter ofY-A- LLC 
countries" or acting as "a member of the lower chamber of a legislative assembly" relates to the position 
within its organization. The foreign job descriptions, therefore, have little to no probative value as 
evidence that the Beneficiary worked abroad in a managerial or executive capacity. 
The foreign job descriptions submitted in response to the RFE are demonstrably unreliable. On appeal, 
the Petitioner submits another description for the Beneficiary (but not for his subordinates), but the 
Petitioner does not demonstrate that the newly submitted description is any more accurate than the 
version submitted earlier and does not explain why it prepared and submitted two completely different 
job descriptions for the same position. We will not accept the second version as representative of the 
Beneficiary's actual duties simply because it looks more like a traditional job description. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary was employed in a managerial capacity abroad. 
III. DOING BUSINESS 
Beyond the Director's decision, the Petitioner has not established that it has been doing business for 
at least one year prior to the date of filing the petition. 6 "Doing business" means the regular, 
systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity 
and does not include the mere presence of an agent or office. 7 
The Petitioner is a limited liability company that formed on December 2, 2012, but existence alone 
does not qualify as doing business. 
On April 11, 2014, the Petitioner purchased the assets of and on May 1, 
2014, the Petitioner signed a lease agreement for its retail location. These events took place less 
than a year before the petition's January 20, 2015 filing date. The Petitioner has not shown that it 
operated any place of business before April 11, 20 14. 
The one-year 
"doing business" requirement applies to the petitioner itself and not to any established 
business that a newly formed petitioner subsequently purchased. It is the prospective employer who 
must have been doing business for at least one year. 8 Therefore, the prior existence of the purchased 
company does not satisfy the doing business requirement. 
The Petitioner submitted copies of invoices as evidence of its business activity, but all of these 
invoices date from October 2014 or later. 
undated letter indicated that the Petitioner "has taken concrete steps to prepare for full 
operations" and that the Beneficiary "hired his management staff relatively close to the acquisition 
6 See 8 C.F.R. § 204.5(j)(3)(i)(D). 
7 
8 C.F.R. § 204.5(j)(2). 
8 
See 8 C.F.R. § 204.5(j)(3)(i)(D). 
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Matter ofY-A- LLC 
date of [sic], which was on April 11, 2014." identified staff 
that the Petitioner hired between March 4, 2014 and April 10, 2014, less than a year prior to the 
petition's filing date of January 20,2015. 
For the above reasons, we find that the Petitioner has not established that it was doing business for at 
least one year prior to the petition's filing date. 
IV. ABILITY TO PAY 
Also beyond the Director's decision, the Petitioner did not establish its ability to pay the 
Beneficiary's proffered wage. The regulation at 8 C.F.R. § 204.5(g)(2) reads as follows: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. In a case where 
the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes 
the prospective employer's ability to pay the proffered wage. In appropriate cases, 
additional evidence, such as profit/loss statements, bank account records, or personnel 
records, may be submitted by the petitioner or requested by the Service. 
Part 5 of Form I-140 includes instructions for the Petitioner to state its current number of U.S. 
employees, its gross annual income, and its net annual income. The Petitioner left those lines blank. 
The Petitioner had not yet prepared its 2014 income tax return when it filed the petition in January 
2015. The 2013 return indicated that the Petitioner paid the Beneficiary only $15,000 that year. 
A copy of a pay receipt issued on December 16, 2014, indicates that the Beneficiary received $4,000 for 
work performed during a one-month pay period, and that his year-to-date pay was $42,000. These 
figures are not consistent with a salary of $60,000 per year, which is equivalent to $5,000 per month. 
The Petitioner has also submitted conflicting financial evidence. A Modified Business Tax Return filed 
with the State of Nevada reported that the Petitioner paid $61,205 in gross wages during the second 
quarter (April through June) of 2014. The Petitioner's profit and loss statement for the entire year of 
2014, however, showed only $29,725 in wages and salaries, considerably less than the $42,000 year-to­
date figure shown on the Beneficiary's pay receipt dated December 16, 2014. The profit and loss 
statement indicated that the company's total expenses for the year were $52,274.15, which is less than 
the gross wages reported for three months of the same year. These figures are incompatible, and cannot 
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Matter ofY-A- LLC 
both be correct. This discrepancy raises further doubts about the reliability and sufficiency of the 
Petitioner's evidence. 9 
The Petitioner did not submit the required types of evidence for the filing date or the year immediately 
preceding it, and the Petitioner's existing evidence is contradictory. The Beneficiary received 
substantially less than the proffered rate a month before the filing date. The Petitioner has not 
established its ability to pay the Beneficiary $60,000 per year as of January 2015. 
V. JOB OFFER 
Another issue beyond the Director's decision concerns the requirement of a job offer from the 
petitioning employer. The prospective employer in the United States must furnish a job offer in the 
form of a statement which indic<i'tes that the beneficiary is to be employed in the United States in a 
managerial or executive capacity. Such letter must clearly describe the duties to be performed by the 
b fi . 10 ene 1c1ary. 
The Petitioner in this case has not met the above requirement. The record contains a copy of an 
older letter from on the foreign entity's letterhead, but the foreign company is not the 
prospective employer in the United States as the regulation requires. The Petitioner has submitted 
evidence of the company's existence, but it does not show the U.S. company's staffing and structure 
at the time of filing. letter refers to an organizational chart at "Exhibit 21 ," but the 
Petitioner did not submit the chart with the immigrant petition. The chart appears, instead, to have 
been an exhibit submitted with a previous nonimmigrant petition. For these reasons, we find that the 
evidence of record does not satisfy the job offer requirement set forth in the regulations. 
VI. CONCLUSION 
The petitiOn will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 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; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofY-A- LLC, ID# 17862 (AAO Aug. 5, 2016) 
9 See Ho, 19 I&N Dec. 591. 
10 8 C.F.R. § 204.50)(5). 
10