dismissed EB-1C Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF W- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 9, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a manufacturer and marketer of major home appliances, seeks to permanently employ 
the Beneficiary as a lead engineer under the first preference immigrant classification for 
multinational executives or managers. 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 of the Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that the Beneficiary was employed abroad in a managerial or executive 
capacity for at least one year in the three years preceding his entry to the United States to work for 
the Petitioner as a nonimmigrant. 
On appeal, the Petitioner offers an additional explanation regarding the Beneficiary's prior 
employment with its foreign subsidiary and asserts that the evidence is sufficient to establish that he 
worked in a managerial capacity abroad for more than one year prior to his transfer to the United 
States in September 2008. 
Upon de nova review, we will dismiss the appeal. 
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 )(1 )(C) of the Act. 
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. § 204.5U)(3). 
Matter of W- Corp. 
IL EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary was employed 
in a managerial capacity abroad for at least one year prior in the three years preceding his entry to the 
United States to work for the Petitioner as a nonimmigrant in September 2008. 1 The Petitioner does 
not claim that its foreign subsidiary employed the Beneficiary in an executive 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 
101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). 
Beyond the required description of a beneficiary's job duties, we review the totality of the evidence 
when examining a beneficiary's claimed managerial capacity, 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. 
Accordingly, our analysis of this issue will focus on the Beneficiary's duties as well as the foreign 
company's staffing levels and reporting structure. 
A. Duties 
In its initial supporting letter, the Petitioner stated that the Beneficiary was employed in the 
managerial position of "senior engineer" with its Indian subsidiary for at least one year in the three 
years preceding his initial entry as a nonimmigrant. 2 The Petitioner provided the following 
description of the Beneficiary's duties in that position: 
• Managing several new product and design change testing and approval requests 
for the Indian market; 
• Organizing Failure Modes and Effects Analysis (FMEA) meetings with design 
engineers to derive tests; 
• Introducing a culture of product safety audits and PHMs; and 
1 The Beneficiary was initially admitted to the United States in L-18 status as an intracompany transferee in a 
specialized knowledge capacity and was later granted H-1B status to provide services as a temporary employee in a 
specialty occupation. 
2 The Petitioner stated that he worked for the foreign subsidiary from June 2003 until June 2008, but did not specify his 
dates of employment in the senior engineer position. As noted, the Petitioner stated elsewhere the he worked for the 
foreign entity until his initial entry to the United States in September 2008. 
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Matter of W- Corp. 
• Supervising and managing the entire lab team to deliver test request targets and 
encouraging them to suggest solutions while reporting test failures to the 
designers. 
The Petitioner went on to state that the Beneficiary "performed essential management duties on a 
daily basis ," "directly supervised subordinate employees ," and "managed a key component of the 
company abroad." 
The Petitioner's initial evidence also included a copy of the Beneficiary's resume , in which he 
described his duties as "Senior Engineer (PALO)" based at the foreign subsidiary. The resume 
included the four duties stated above under the heading "Project and Management," but it also 
provided eight additional job duties under the headings "OpEx" and "Test Automation and 
organizational influence." The additional duties included: using OpEx to solve quality/safety issues; 
using process map and MSE to improve test system; writing LabVIEW applications to automate 
software testing and noise and vibration validation; using computer automation to eliminate operator 
variation in the Temperature Rise Test; visiting customers and suppliers to understand field failures; 
coordinating with external agencies to calibrate lab instruments; assessing global lab metrics and 
ratings; and participating in global lab calls with his manager. 
In a request for evidence (RFE), the Director asked the Petitioner to provide a more detailed 
description of the Beneficiary's specific day-to-day tasks and the amount of time he allocated to 
each duty, documentary evidence of his managerial duties, and additional information regarding the 
foreign entity's structure and any subordinates the Beneficiary supervised. 
In response to the RFE, the Petitioner stated that the Beneficiary "was responsible for managing the 
process of testing [ the company's] manufactured products," and was "the only Senior Engineer for 
product approval at [the company's] ' It provided a letter 
from the foreign subsidiary's plant director, who emphasized that the Beneficiary was "responsible 
for ensuring final product approval for the production of all India projects, transregional projects for 
the regional market and export projects. " In addition, he stated that the Beneficiary "managed 
priorities, deadlines, supplier selection, budgets and set the strategy and delivery to advance products 
to Product Launch." Further , the plant director's letter indicated that "other testing professionals and 
managers from the Product Approval team were ultimately responsible for carrying out the day-to­
day tasks associated with these functions." 
The Petitioner also submitted a "diary " of the Beneficiary ' s daily duties /work schedule over a 
"typical" two-week period, and additional documents which it described as internal e-mails 
summarizing meetings the Beneficiary attended with department leads , presentations and other 
documentation of projects developed by the Beneficiary, and lab evaluation reports for the 
Beneficiary's projects. 
In the denial decision, the Director noted that the initial description was too broad to establish the 
nature of the Beneficiary's day-to-day tasks. The Director acknowledged the additional information 
provided in response to the RFE, noting that the duties in the "Diary" appeared to include a mix of 
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Matter of W- Corp. 
qualifying duties, non-qualifying duties, and duties that could not be readily classified as managerial 
or non-managerial. 
The Director then went on to discuss a prior Form 1-140 filing that is part of the record of 
proceedings. 3 The Director found that the Petitioner's claims regarding the Beneficiary's foreign 
employment were inconsistent with information it had provided on the approved ETA Form 9089, 
Application for Permanent Employment Authorization, submitted with the prior petition. Specifically, 
the Director found that the information on the Form 9089 indicates that the Beneficiary held his last 
position abroad for less than one year (from October 1, 2007, until September 25, 2008), and that he 
performed primarily non-managerial duties in that role. 
The Director quoted the complete job description the foreign entity had provided for the Beneficiary 
in support of the previous Form 1-140: 
As a Senior Engineer, he organized system and subsystem level FMEA (Failure mode 
and effects Analysis) meetings with the designer team in order to derive test plan for 
product approval. He also architected data acquisition systems for performance and 
reliability testing using LabVIEW and Diadem software. Used [the company's] 
OpEx six sigma tools like DOE (Design of Experiments), MSE (Measurement 
System Analysis) and COY (Components of Variation) to interpret test results on 
JMP statistical software. He followed C2C design process tollgates to meet the 
product launch timelines. He published various lab test procedures for Washing 
machine and Dryers. He worked on automatic load sensing algorithm design and 
cycle algorithm and appliance control system. He is experienced in providing 
solutions oriented service to engineering and technology partners. 
The Director found that the unresolved discrepancies in the Beneficiary's job duties cast doubt on 
the Petitioner's claim that the senior engineer position was primarily managerial in nature. Further, 
the Director found that, even if the senior engineer position was in a managerial capacity, the 
Petitioner indicated on the Form 9089 that he held that position for less than one year.4 
' In the previous Form I-140, the Petitioner requested classification of the Beneficiary as a member of the professions 
holding an advanced degree under the second preference immigrant classification. Immigration and Nationality Act (the 
Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). U.S. Citizenship and Immigration Services (USCIS) approved that 
petition in September 2013. 
4 According to the Form 9089, the Beneficiary held the position of "Engineer" between June I, 2004 and October I, 
2007, and performed the following duties in that role: 
Organized Safety Audits and performed [company] safety tests. Performed product level and 
component level forced failure tests as per [Corporate Product Safety Standard]. Used proprietary 
PHM (Product Hazard Management) process to resolve safety failures and had good understanding of 
mechanical, chemical and electrical technologies of home appliances. Developed laboratory 
instrumentation, PLC systems and data acquisition systems. Used programming languages, C, C++, 
Opto22, PLC, VB and .NET and Lab VIEW. Demonstrated strong mechanical aptitude and experience 
with wiring systems. 
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Matter of W- Corp. 
On appeal, the Petitioner asserts that, while the Beneficiary held the title "Engineer" from 2004 until 
October 1, 2007, "his responsibility progressively increased, and by the end of his second year, the 
beneficiary had begun working primarily in a managerial capacity, prior to his official job title 
change in 2007." The Petitioner states that changes were made to the Beneficiary's responsibilities 
during the course of his annual performance reviews and that he "began acting as a functional 
manager" prior to 2007. 
The Petitioner reiterates the job description it provided previously, summarizes the evidence 
submitted in response to the RFE, and notes that some of the documentary evidence submitted with 
that response dated back to 2006. The Petitioner cites to Matter of G- Inc., Adopted Decision 2017-
05 (AAO Nov. 8, 2017), in support of its claim that the Beneficiary managed an essential function 
for the Indian subsidiary. 
We agree with the Director's finding that the Petitioner did not establish that the Beneficiary was 
employed abroad in a managerial capacity for at least one year in the three years preceding his entry 
to the United States to work for the Petitioner as a nonimmigrant. 
First, we note that the Petitioner has not addressed the discrepancy in job duties highlighted in the 
Director's decision. The Form 9089 the Petitioner prepared in 2013 and the employment 
verification letter the foreign employer submitted at that time included a description of the 
Beneficiary's senior engineer position that did not include managerial duties. That version of the 
Beneficiary's duty description did appear to show an increase in responsibility over the "engineer" 
role he held prior to October 2007, but did not rise to the level of including duties that fall within the 
statutory definition of managerial capacity. Rather, the duties reflected that the Beneficiary 
developed data acquisitions systems for performance and reliability testing, used internal tools to 
"interpret test results, worked on design and testing projects, and published lab test procedures. These 
duties suggest that he likely held a critical technical role in pre-launch product approval testing, but 
are not consistent with the Petitioner's claim that he managed the entire product approval function 
for the Indian subsidiary. 
We acknowledge that the Beneficiary's resume includes the four responsibilities attributed to him at 
the time of filing, and we have no reason to doubt that he supervised lab technicians in testing 
activities and led testing and approval requests for certain products. While it appears he likely 
performed some supervisory functions, duties such as "introduced the culture of product safety 
audits" and "organized FMEA meetings ... to derive test plans and motivated the requesters to use 
global lab request system along with my manager," are not clearly managerial tasks. Further, 
assuming the Beneficiary's resume is accurate, the Petitioner opted to omit the many other duties the 
Beneficiary actually performed as a senior engineer. These duties, related to solving quality/safety 
issues through OpEx, improving test systems, writing LabVEW applications to automate software 
testing, and using computer automation to improve testing variations, resemble the duties the 
Petitioner previously provided for the position when it filed the ETA 9089. 
In sum, the record contains inconsistent descriptions of the Beneficiary's actual day-to-day duties as 
a senior engineer and insufficient evidence to establish when or if he performed primarily 
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Matter of W- Corp. 
managerial duties. The Petitioner has not resolved the discrepancies 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). Although the Petitioner submitted supporting evidence in response to the RFE, it did not 
sufficiently explain the relevance of the supporting e-mails, lab reports, presentations and other 
documentation included with that response. This evidence shows that the Beneficiary issued 
instructions to lab employees as part of his responsibilities, but, as discussed further below, the 
evidence does not establish that this was a managerial duty, or that he primarily performed 
supervisory duties. 
With respect to the question of when the Beneficiary assumed his claimed managerial job duties, the 
Petitioner maintains that he assumed managerial duties prior to his official change in job title in 
October 2017, and states that such duties were assigned as part of his annual performance reviews. 
However, we note the Petitioner indicated on the Form 9089 that the Beneficiary had a clearly 
delineated change in job duties at the time he was promoted to senior engineer. The Petitioner has 
not provided, for example, copies of the annual performance reviews indicating that the 
Beneficiary's manager added higher level responsibilities to his job description on a certain date. 
We find it reasonable that the Beneficiary incrementally assumed additional responsibilities over 
time while employed by the foreign entity. But, for the reasons already addressed, the record does 
not establish that he reached a point where he performed primarily managerial duties. The 
Petitioner's claim that the position was primarily managerial ignores the majority of the duties listed 
in the Beneficiary's own resume for the same period of employment and the statements the 
Petitioner itself made on the Form 9089. 
Finally, we agree with the Director's finding that the "diary" intended to illustrate the duties the 
Beneficiary performed on a typical day included a combination of non-managerial duties, 
supervisory duties, and duties that could not be readily classified as either based on the limited 
information provided. 
The fact that the Beneficiary exercised some discretion over product approval and testing as a senior 
engineer working in his particular lab does not necessarily establish eligibility for classification as a 
multinational manager. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" managerial in nature. Section 101(A)(44)(A) of the Act. Here, there are too 
many unresolved inconsistencies in the record to establish that the Beneficiary primarily performed 
managerial duties for at least one full year prior to his transfer to the United States in September 
2008. 
B. Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS takes into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development of the organization. See section 101(a)(44)(C) of the 
Act. 
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Matter of W- Corp. 
At the time of filing, the Petitioner submitted an organizational chart which showed the structure of 
the foreign entity's "Product Approval Lab Operations" as of May 2008. The chart depicted the 
Beneficiary as an "engineer" reporting to a manager, and supervising three employees - one 
identified as "electrical lab" and two identified as "mechanical lab." Each subordinate had one 
technician under him on the chart. In a separate document, the Petitioner provided the names, titles, 
duties, and educational requirements for the Beneficiary's three direct subordinates. Each was 
identified as a "lab technician" responsible for evaluating and testing products and components 
under moderate supervision, recording and summarizing test results, and writing draft reports. This 
document indicated that all three positions require a high school diploma and one year of experience. 
In response to the RFE, the foreign entity's plant director stated that the Beneficiary "managed a 
team of six (6) professional engineers/technicians responsible for the day-to-day engineering 
activities." He identified these employees as an electrical engineer, a mechanical engineer, a 
technician supervisor, and technicians. In addition, the director's letter stated that the Beneficiary 
"indirectly supervised dozens of engineers and technicians on each project he led." 
The Petitioner submitted a revised May 2008 organizational chart for "Product Approval Lab 
Operations" which identified the same three direct and three indirect subordinates. The titles of the 
Beneficiary's immediate subordinates were changed to electrical engineer, mechanical engineer, and 
technician supervisor. The Petitioner stated that the electrical engineer and one of the technicians 
have bachelor of engineering degrees, the mechanical engineer has a Ph.D. in engineering, and the 
supervisor and two of the technicians have "Mechanical Associate" degrees. However, the 
Petitioner also resubmitted the document which identifies the Beneficiary's three direct subordinates 
as lab technicians whose positions required only a high school diploma and one year of experience. 
In addition, the Petitioner provided an expanded organizational chart depicting the 
This chart shows the Beneficiary as "Sr. Engineer, Product Approval" and 
depicts a lateral senior engineer position responsible for lab operations, reporting to the same 
manager. Finally, the Petitioner submitted functional flow charts to show where testing and product 
approval functions fit within the product development process, and to demonstrate that all projects 
for the India market go through the Pondicherry-based "Product Approval function" prior to product 
launch. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Here, the Petitioner states 
that the Beneficiary managed an essential function , and also claims that he supervi sed subordina te 
profess ionals. 
Personnel m anagers a re required t o prim arily supervise and control the work of other supervisory, 
profess ional, o r m anagerial employees . C ontrary to the common understanding of the word 
"manager," the statute plainly states that a " first line supervi sor is not considered to be acting in a 
managerial capacity merely by virtue o f the s upervisor's supervi sory duties unless the e mployees 
Matter of W- Corp. 
supervised are professional." 5 8 C.F.R. § 204.5G)(4)(i). 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. § 204.5G)(2). 
The Petitioner has provided varying job titles for the Beneficiary's subordinates in India, but initially 
indicated that they were lab technicians. The Petitioner also submitted evidence indicating that the 
positions held by those subordinates did not require completion of a bachelor's degree. Therefore, 
even though the Petitioner later stated that some of the subordinates had at least a bachelor's degree, 
the evidence as a whole does not establish that the Beneficiary supervised professional employees. 
In addition, while the organizational chart appears to depict the Beneficiary's direct subordinates as 
supervisors, the limited job descriptions the Petitioner provided for them did not include supervisory 
duties. Finally, the Petitioner did not indicate that the Beneficiary's responsibilities included hiring 
and firing employees, or taking or recommending or personnel actions. The record does not 
establish that the Beneficiary was employed abroad as a personnel manager. 
The Petitioner's primary claim is that the Beneficiary managed the product approval and testing 
function for its subsidiary's Regional Technology Center. The Petitioner states that his role was "to 
ensure final product approval for production of [the Petitioner's] appliances in this region." 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 "(I) 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 ofG- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
We agree with the Petitioner that product approval and testing are essential pre-production processes 
within the foreign entity's operations. However, the record does not establish that the Beneficiary 
primarily managed this function. As discussed, the record does not contain detailed, consistent 
descriptions of what the Beneficiary actually did on a day-to-day basis as a senior engineer and for 
that reason alone, the Petitioner has not demonstrated that he primarily managed an essential 
function. Due to the unresolved discrepancies in the job descriptions, we cannot conclude that he 
primarily performed managerial duties. 
In addition, the record does not establish that he acted at senior level within the organizational 
hierarchy or with respect to the function managed. The Beneficiary was not the only senior engineer 
in the "Product Approval Lab Operations" component of the foreign entity, and the record shows 
5 In evaluating 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. Cj: 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 10 I (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." 
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Matter of W- Corp. 
that both the Beneficiary and another senior engineer reported to the same manager. Therefore, the 
record does not support the Petitioner's claim that he was the "only" engineer in the department or 
the most senior employee responsible for product approval activities. The record does not contain 
job descriptions for the other senior engineer, or for the Beneficiary's manager, nor does it contain 
an organizational chart showing where the fit within the foreign subsidiary's 
overall structure. Further, as discussed, the job duties the Petitioner stated on the Beneficiary's Form 
9089, and those stated in his resume, described an employee who performed higher-level technical 
duties associated with product testing, but not one who managed the entire approval and testing 
process. The record does not sufficiently support the Petitioner's claim that the Beneficiary was 
employed abroad as a function manager. 
III. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that the Beneficiary was 
employed abroad in a managerial capacity for at least one year in the three years preceding his entry 
to the United States as a nonimmigrant. 
ORDER: The appeal is dismissed. 
Cite as Matter of W- Corp., ID# 1345804 (AAO July 9, 2018) 
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