dismissed EB-1C Case: Data Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 7375710 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 7, 2020 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as a provider of data services, seeks to permanently employ the 
Beneficiary as a senior marketing manager under the first preference immigrant classification for 
multinational executives or managers. Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
The Director of the Nebraska Service Center denied the petition on multiple grounds, concluding that 
the Petitioner did not establish that: ( 1) the Beneficiary was a paid employee of the Petitioner and (2) 
the Beneficiary would be employed in a managerial or executive capacity in the United States. 1 
On appeal, the Petitioner points to previously approved L-lA nonimmigrant petitions and the 
Beneficiary's U.S. duty description and asserts that this evidence demonstrates that she would 
supervise professional subordinates . The Petitioner asserts that its failure to submit an IRS Form W-
2, Wage and Tax Statement for the Beneficiary should not alone be grounds for dismissing the petition. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal, as the 
Petitioner bas not sufficiently demonstrated that the Beneficiary would act in a managerial capacity in 
the United States. However, we will withdraw the Director's conclusion that the Petitioner did not 
establish the Beneficiary as a paid employee . 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate . Section 203(b)(l)(C) oftbe Act. 
1 In the denial decision, the Director did not explicitly state that the Petitioner did not establish that the Beneficiary would 
not act in a managerial capacity in the United States, but indicated that it did not demonstrate that her U.S. subordinates 
were professionals or supervisors . As such, it appears clear that the Director concluded that the Petitioner did not 
demonstrate that the Beneficiary would act in a managerial capacity in the United States. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(i)(3). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The first issue we will address is whether the Petitioner established that the Beneficiary would act in 
a managerial capacity in the United States. The Petitioner does not claim that the Beneficiary would 
be employed in an executive capacity. Therefore, we restrict our analysis to whether the Beneficiary 
would be employed in a managerial capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act, 8 U.S.C. § l 10l(a)(44)(A). 
When examining the managerial capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. 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 
capacity. 8 C.F.R. § 204.5(i)(5). Beyond the required description of the job duties, we examine 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. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
A. Duties 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the Beneficiary 
will be primarily engaged in managerial duties, as opposed to ordinary operational activities alongside 
the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d 1533. 
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The Petitioner stated that it "is a provider of data services, business information and workflow 
solutions to businesses" and that it "produces data, analytics and information" for clients. The 
Petitioner indicated that the Beneficiary would act as a senior marketing manager anp....1h.a1...sh woul 
d "manage the implementation of the U.S. marketing strategy for the market leadingl___Jonline 
research in order to achieve a $3.5 million annual revenue target." The Petitioner stated that the 
Beneficiary had acted in this role since July 2016 as an L-lA nonimmigrant and submitted the 
following duties for the Beneficiary in support of the petition: 
► Leading and line managing a subordinate team of employees (30%); 
► Managing the end-to-end digital marketing funnel to ensure that targets are met (20%); 
► Leading the development of the nature and engagement strategy, including the launch 
of Account Based Marketing to ensure high quality Marketing Qualified Leads are 
created, cross-sell and up-sell opportunities generated, and deliver customer 
satisfaction (10% ); 
► Forecasting, scenario planning and budget management, including creating annual 
budget proposals and justification documentation to the Finance/Marketing Director 
(10%); 
► Ensuring that all marketing activities are monitored and measured for their 
effectiveness, including utilizing data and insights to drive campaign improvements 
and demonstrate ROI (10%); 
► In collaboration with the Marketing Director, establishing the vision and strategy for 
the marketing function (5%); 
► Communicating a clear vision that inspires and aligns others to achieve their goals, 
translating high-level strategy into practical delivery for the team (5%); and 
► Collaborating with senior management in the development of a lead generation model, 
with focus on enhancing current sales enablement (5%). 
The Beneficiary's U.S. duty description and the supporting evidence do not sufficiently establish that 
she would devote a majority of her time to qualifying managerial duties. For instance, the Petitioner 
contends that the Beneficiary would devote 30% of her time to managing a team, but the record 
includes little supporting documentation to substantiate this assertion. Beyond this, the Petitioner 
provides few details and no supporting evidence to corroborate the Beneficiary's asserted managerial 
duties, such as targets she set, strategies she developed, budget management she directed, campaign 
improvements she ordered, or vision she set. Specifics are clearly an important indication of whether 
a beneficiary's duties are primarily managerial in nature, otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. 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). In fact, the Beneficiary's duties appear to 
indicate that she holds little discretionary authority, indicating that she submits budgets proposals and 
justifications to a senior marketing director and that she only develops vision and strategy for her 
claimed function in collaboration with this senior manager. 
In addition, several of the Beneficiary's duties are more reflective of her performance of non­
qualifying operational level duties, such as her meeting sales targets, launching marketing to acquire 
high quality leads, creating proposals and justification documents, monitoring marketing activities, 
developing a lead generation model, and "enhancing current sales enablement." In sum, the 
Beneficiary's duties are more reflective of an employee focused on day-to-day operational activities, 
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rather than her asserted management of her claimed professional subordinates or function. There is 
little indication or supporting evidence that the Beneficiary primarily delegates her apparent non­
qualifying sales tasks to her claimed subordinates. 
Whether the Beneficiary is a managerial employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" managerial. See sections 10l(a)(44)(A) of the Act. 
Here, the Petitioner does not sufficiently document what proportion of the Beneficiary's duties would 
be managerial functions and what proportion would be non-qualifying. Although the Petitioner lists 
some managerial tasks within the Beneficiary's duty description, it also provides tasks throughout her 
duty description indicating that she would be primarily involved in providing services and performing 
the duties of her claimed function. For this reason, we cannot determine whether the Beneficiary is 
primarily performing the duties of a manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 
2d 22, 24 (D.D.C. 1999). 
Even though the Beneficiary holds a senior position within the organization, the fact that she will 
manage or direct the business does not necessarily establish eligibility for classification as a 
multinational manager within the meaning of section 101(a)(44)(A) of the Act. The Beneficiary may 
exercise discretion over the Petitioner's day-to-day operations and possess the requisite level of 
authority with respect to discretionary decision-making; however, the position description alone is 
insufficient to establish that his actual duties would be primarily managerial in nature. 
B. Staffing and Function Manager 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose 
and stage of development. See section 101 (a)( 44 )( C) of the Act. 
On appeal, the Petitioner contends that the Beneficiary supervises professional subordinates. The 
statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A) of the Act. Personnel managers are required to primarily 
supervise and control the work of other supervisory, professional, or managerial employees. Contrary 
to the common understanding of the word "manager," the statute plainly states that 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." Id. If a beneficiary directly 
supervises other employees, the beneficiary must also have the authority to hire and fire those 
employees, or recommend those actions, and take other personnel actions. 8 C.F.R. § 204.5(i)(2). 
To determine whether a beneficiary manages professional employees, we must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a U.S. 
baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation"). Section 101 ( a)(32) of the Act, states that"[ t ]he term profession shall include but not be 
limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." Therefore, we must focus on the level of education 
required by the position, rather than the degree held by subordinate employee. The possession of a 
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bachelor's degree by a subordinate employee does not automatically lead to the conclusion that an 
employee is employed in a professional capacity. 
The Petitioner has not demonstrated that the Beneficiary would qualify as a personnel manager based 
on her management of professional employees. In support of the petition, the Petitioner submitted an 
organizational chart indicating that the Beneficiary supervised three subordinates, a senior marketing 
executive, marketing executive, and a sales operations manager. However, in response to the 
Director's request for evidence (RFE), the Petitioner listed five subordinates for the Beneficiary, 
including two marketing executives, a senior marketing executive, a sales operations manager, and a 
marketing acquisition campaign manager. Only two of these subordinates matched those listed in the 
initial organizational chart. However, the Petitioner did not explain these differences between the two 
submitted organizational charts; in fact, it indicated that one of the marketing executives no longer 
worked for the company. 
Further, the Petitioner provided IRS Forms W-2 which did not reflect that her claimed subordinates 
earned their asserted salaries. For example, the Petitioner stated that one marketing executive earned 
$60,904 per year, but an accompanying 2018 IRS W-2 reflected that she only earned $28,435.57 
during that year. Again, the Petitioner indicated that the sales operations manager was paid $90,000 
per year, while her 2018 IRS Form W-2 indicated she earned only $11,657.80 that year. Lastly, the 
acquisition campaign manager was shown to earn $86,850, but her submitted 2018 IRS Form W-2 
showed that she earned just $38,075.76 that year. Indeed, only one of the Beneficiary's claimed 
subordinates was shown to earn an annual salary even close to that which the Petitioner claimed; 
namely the 2018 IRS Form W-2 for one of senior marketing executive reflected that she earned 
$75,423.28 during that year. However, this amount was also not reflective of this claimed 
professional's stated annual salary of $83,569. Although we acknowledge that certain discrepancies 
between IRS Forms W-2 and asserted salaries could be possible, the inconsistency across the board 
with respect to all of the Beneficiary's claimed subordinates leaves substantial question as to whether 
they act in their asserted professional capacities subordinate to her. The Petitioner must resolve 
inconsistencies and ambiguities in the record with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The Petitioner also did not substantiate that the Beneficiary has personnel authority over her claimed 
professional subordinates. For instance, the Petitioner states that the Beneficiary "has the authority to 
hire, fire, and/or recommend those or other personnel actions." However, the record includes no 
supporting documentation to substantiate this assertion nor does the Petitioner detail these actions. 
Further, as discussed, there is no supporting evidence to demonstrate the Beneficiary delegating tasks 
to her asserted professional subordinates or reflecting them primarily relieving her from performing 
the non-qualifying operational tasks listed in her duty description. This lack of supporting evidence, 
in light of the above discrepancies in their paid wages, leaves substantial question as to whether the 
Beneficiary acts as a personnel manager over her claimed professional subordinates. Therefore, the 
Petitioner has not sufficiently established that the Beneficiary would qualify as a personnel manager. 
Furthermore, the Petitioner also appears to indicate that the Beneficiary qualifies as a function manager 
noting that she "manages a function of the organization ... the implementation of the U.S. marketing 
strategy for our market leadingl • lonline HR resource." The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead 
5 
is primarily responsible for managing an "essential function" within the organization. See section 
10l(a)(44)(A)(ii) of the Act. If a petitioner claims that a beneficiary will manage an essential function, 
it must clearly describe the duties to be performed in managing the essential function. In addition, the 
petitioner must demonstrate that "(l) the function is a clearly defined activity; (2) the function is 
'essential,' i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to 
perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy 
or with respect to the function managed; and ( 5) the beneficiary will exercise discretion over the 
function's day-to-day operations." Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 
2017). 
The Petitioner has not sufficiently demonstrated that the Beneficiary would qualify as a function 
manager in the United States. First, the Petitioner did not sufficiently explain the Beneficiary's 
function. The Petitioner only generically stated that the Beneficiary "manages the implementation of 
the U.S. marketing strateg: for the market leading! [ online HR resource." For instance, it is 
not entirely clear what 1 I online" is; and as a result, it is difficult to understand how the 
Beneificary manages this function. The Petitioner noted that the Beneficiary "decides which tactics, 
campaigns and segmentation take[ s] place to promotd I where to invest the marketing budget, 
how to allocate the team's time and resource[s] and collaborates with the sales, content and product 
team to drive forward the wider business strategy." However, it is not clear from this explanation how 
the Beneficiary's duties represent a defined function. Further, the Petitioner does not properly detail 
or document the Beneficiary's claimed managerial tasks, such as the tactics, campaigns, marketing 
budgets, or personnel decisions she made. Again, there is no supporting documentation to substantiate 
the Beneficiary's management of her claimed function or evidence of her delegating non-qualifying 
tasks to subordinates it claims are a part of this function. Without this supporting evidence, it has not 
established that the Beneficiary would primarily manage her function, rather than perform it. 
In addition, the Petitioner does not properly articulate how the Beneficiary acts at a senior level within 
her claimed function. In fact, the original organizational chart reflects that the Beneficiary reported to 
a senior marketing director, who in tum was overseen by a managing director. Likewise, as we 
discussed, the Beneficiary's duty description appeared to indicate that she had little discretionary 
authority and that she had to regularly send proposals and reports to the senior marketing director and 
coordinate the vision of her claimed function with this more senior employee. Without further 
documentary evidence and explanation, it is not clear that the Beneficiary acts as the senior manager 
of her claimed function. For these reasons, the Petitioner has not sufficiently established that the 
Beneficiary would qualify as a function manager. 
The Petitioner has not demonstrated that the Beneficiary would act in a managerial capacity in the 
United States. 
III. FOREIGN EMPLOYMENT IN A MANAGERIAL CAP A CITY 
Beyond the decision of the Director, we also conclude that the Petitioner has not established that the 
Beneficiary was employed in a managerial or executive capacity in her former position abroad. The 
Petitioner asserted that the Beneficiary was employed abroad as a manager and not as an executive; as 
such, we will only analyze whether she was employed as a manager abroad. 
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The Petitioner stated that the Beneficiary was employed abroad from October 2013 to July 2016 "in 
managerial positions of increasing responsibility." It indicated that the Beneficiary had been most 
recently employed abroad from March 2016 to July 2016 as a "Senior Marketing Executive, 
I " I where she "manard the creation and implementation of an end-to-end digital 
marketing funnel forltrade magazine, with focus on customer retention and growth." 
Further, the Petitioner explained that the Beneficiary had been reviously employed abroad from 
January 2015 to February 2016 as a "Senior Marketing Executive, 'where "she managed the 
definition and delivery of an integrated nurture strategy for the company's...._ __ _, product." In each 
position, the Petitioner stated that the Beneficiary managed an essential function, indicating it claimed 
she acted as a function manager abroad. 
The Petitioner did not sufficiently demonstrate that the Beneficiary acted as a function manger in her 
former positions abroad. First, the Petitioner did not adequately articulate and define the Beneficiary's 
claimed functions; namely, the asserted "digital marketing funnel fon I' and "integrated 
nurture strategy for the company's! 1 lproduct" functions. In addition, there is no supporting 
documentation on the record reflecting the Beneficiary acting in either of her asserted function 
manager roles abroad or evidence substantiating that she primarily managed her claimed functions as 
opposed to performing non-qualifying operational duties within them. For instance, the Petitioner did 
not detail or document the Beneficiary's managerial tasks, such as the strategies she established, the 
campaign improvements she implemented, or the team members she supported and mentored. It is 
not clear how the Beneficiary was relieved from performing her functions, particularly since both 
foreign organizational charts reflect that neither of the claimed functions included other employees. 
Indeed, the Beneficiary's foreign duty description included what appeared to be several non-qualifying 
operational tasks related to her performance of the functions rather than her management of them; 
such as, her implementing "segmentation streams for nurture programs," "reviewing and updating the 
lead scoring matrix," "optimizing the credit and trials journey," "overseeing the launch of [the] website 
home page and marketing pages," and "reviewing user journey's." 
Again, whether the Beneficiary was a managerial employee abroad turns on whether the Petitioner has 
sustained its burden of proving that her duties were "primarily" managerial. See sections 
101(a)(44)(A) of the Act. Here, the Petitioner does not sufficiently document what proportion of the 
Beneficiary's duties abroad were managerial functions and what proportion were non-qualifying. 
Although the Petitioner lists some managerial tasks within the Beneficiary's duty description, it also 
provides tasks throughout her foreign duty descriptions indicating that she was primarily engaged in 
performing the duties of her claimed functions rather than managing them. For this reason, we cannot 
determine whether the Beneficiary was primarily performing the duties of a function manager abroad. 
See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
For the foregoing reasons, the Petitioner also did not establish that the Beneficiary acted m a 
managerial capacity in her former positions abroad. 
IV. CONCLUSION 
The appeal will be dismissed as the Petitioner has not established that the Beneficiary would be 
employed in a managerial or executive capacity in the United States or that she was employed in either 
of these capacities abroad. 
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ORDER: The appeal is dismissed. 
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