dismissed EB-1C Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 12359988 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 02, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a software engineering company, seeks to permanently employ the Beneficiary as its 
"Senior Project Manager" under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(C) , 8 U.S.C. 
§ 1153(b)(l)(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 Texas Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that the Beneficiary was employed abroad and would be employed in the United 
States in a managerial or executive capacity. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal and affirm 
the Director's denial of the petition because the Petitioner did not establish that the Beneficiary's U.S. 
position would be in a managerial capacity.1 Since the identified basis for denial is dispositive of the 
appeal, we decline to reach and hereby reserve the Petitioner's arguments regarding the Beneficiary's 
employment abroad. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not 
required to make findings on issues the decision of which is unnecessary to the results they reach"); 
see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues 
on appeal where an applicant is otherwise ineligible). 
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) 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 
1 The Petitioner claims that the Beneficiary would be employed in the United States in a managerial capacity. The 
Petitioner does not claim that the Beneficiary has been or would be employed in an executive capacity. 
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. § 204.50)(3). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The issue to be addressed is whether the Petitioner provided sufficient evidence establishing that the 
Beneficiary's position in the United States would be in a managerial capacity. The Petitioner claims 
that the Beneficiary's position will not involve primarily managing subordinates, but rather indicates 
that overseeing professional employees and independent contractors would be ancillary to his foremost 
role managing "major cement plant maintenance and improvement projects." 
"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. 
The statutory definition of "managerial capacity" al lows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act. The term "function manager" applies 
generally when a beneficiary does not primarily supervise or control the work of a subordinate staff 
but instead is primarily responsible for managing an "essential function" within the organization. See 
section 101(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 "(1) 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 wi 11 exercise discretion over 
the function's day-to-day operations." Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 
2017). 
A. Factual Background 
In a supporting cover letter, the Petitioner claimed a gross income of 185 million euros and a workforce 
of over 100 employees. The Petitioner stated that the Beneficiary will manage "short and long-term 
projects," have "full discretion" over the activities in his "area of responsibilities," and oversee "teams 
of professional and supervisory employees and contractors" who will carry out the duties involved in 
the projects the Beneficiary will manage. The Petitioner claimed that the Beneficiary will projects 
ranging in value from $1 million to $10 million. The Petitioner provided the Beneficiary's job duty 
breakdown, stating that the proposed position will involve the following activities: managing "capital 
projects in thel ~· leading document preparation to obtain permits and bid 
on projects, serve as liaison between the internal engineering team and outside suppliers, making 
2 
"impactful decisions" and communicating design elements and project guidelines to contractors and 
sub-contractors, delegating responsibilities and fostering "as sense of belonging and ownership among 
project team members," "[p]roviding project management services and technical expertise" at 
production facilities, establishing project requirements and addressing problems, arranging 
construction estimates and reviewing drawings and specifications, communicating with "key 
operational personnel," and traveling to operation sites for "extended periods." 
The Petitioner also provided two organizational charts pertaining to the corporate engineering division 
within the U.S. organization. One chart depicts a broader hierarchy of the entire division, which is 
headed by the senior vice president of cement operations and corporate engineering. The chart shows 
that the division is subdivided into six departments - technology, process improvement, 
environmental, maintenance engineering, quality~jects - and that each department is headed 
by a director. The Beneficiary is depicted as the L__J Project Manager," one of six positions that 
is subordinate to the director of the projects department. The second organizational chart zooms in on 
the specific breakdown of the staff and contractors who perform duties and provide services in the 
course of executing projects within the Beneficiary's supervisory purview. 
The Director subsequently issued a request for evidence (RFE) and the Petitioner responded, pointing 
out that cement manufacturing is the company's "main business" and highlighting the Beneficiary's 
"full" discretionary authority over "ma~or cement plant maintenance and improvement projects" in his 
senior project manager position in the ~--------~~· The Petitioner also emphasized 
the value of the Beneficiary's projects, stating that they range in value "from $1 million to $20 
million," as opposed to the $1 million to $10 million range that was referenced in the Petitioner's 
original supporting statement. The Petitioner added to the Beneficiary's original job duty breakdown, 
elaborating on the various phases and elements that are common to a project and the Beneficiary's 
role therein. The Petitioner also resubmitted the second organizational chart pertaining specifically to 
the Beneficiary's department and provided position descriptions and resumes of employees who carry 
out job duties within the scope of the various projects the Beneficiary manages. 
On appeal, the Petitioner disputes the denial, reiterating prior claims regarding the Beneficiary's broad 
discretionary authority over projects with considerable impact over the Petitioner's business. The 
Petitioner contends that although the Beneficiary does not have direct reports in his U.S. position, he 
"directs the work of ... professional employees and independent contractors" in the course of 
managing projects that are claimed to range in value from "$1 million to $20 million." 
B. Analysis 
Despite claiming that the Beneficiary would manage projects that impact the Petitioner's profitability 
and are therefore critical to the Petitioner's operation, the Petitioner has not established that the 
Beneficiary manages an essential function within the organization. 
As determined in Matter of G-, the term "essential function" applies to an activity that is "core" to an 
organization and as such, it must be managed by someone who is "key" within the organization and 
who in turn is able to "advance their organizations' core activities." Adopted Decision 2017-05. In 
the matter at hand, the Petitioner provides evidence indicating that the Beneficiary manages projects 
within a department that is a subset of the cement operations and corporate engineering division. 
3 
Although the Petitioner claims that the Beneficiary's position is within the ,__ ______ ____, 
I I it does not provide any organizational charts depicting such a unit. As such, it is unclear 
whether such a unit exists and if so, where this unit sits within the Petitioner's broader organizational 
hierarchy. Further, because the record contains no other organizational charts and the Petitioner does 
not otherwise elaborate on the other components of the organization, we cannot ascertain the 
placement of the cement operations and corporate engineering division within the context of the 
organization and we are therefore precluded from gaining a meaningful understanding of the 
Beneficiary's placement within that organization. 
We further note that merely demonstrating that the Beneficiary manages a set of projects that are 
incorporated within one of the organization's chief divisions is not sufficient for the purpose of 
determining that the Beneficiary is a function manager under section 101(a)(44)(A) of the Act. As 
noted earlier, the Petitioner must establish that not only does the Beneficiary manage a function with 
the organization, but also that the function managed is essential or core to the organization. See Matter 
of G- Inc., Adopted Decision 2017-05 (concluding that the financial planning and analysis (FP&A) 
function of the petitioning entity was "essential" because its "revenue planning and forecasting process 
impacts every business unit and geographic area within the worldwide organization" and the 
"executive team and board of directors depend on these FP&A reports and strategies to drive [the 
petitioner's] financial health and make critical decisions regarding mergers and acquisitions"). In this 
instance, although the Beneficiary may play a critical role in managing the personnel and workflow 
surrounding the projects he manages, the Petitioner does not demonstrate that these projects constitute 
an essential function within the context and hierarchy of the Petitioner's organization. 
Finally, although the Petitioner emphasizes the value of the projects that the Beneficiary manages, the 
monetary amounts it claims are inconsistent. Initially, the Petitioner stated the Beneficiary's projects 
range in value "from $1 million to $10 million"; in response to the RFE and on appeal, however, the 
Petitioner claims that the projects range "from $1 million to $20 million." The Petitioner has not 
resolved this discrepancy with independent, objective evidence pointing to where the truth lies. Matter 
of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). Because the Petitioner has not adequately documented 
the value of the Beneficiary's projects, which could be as little as .5% or as high as 10% of the 
Petitioner's $185 claimed gross earnings, we cannot conclude that the Beneficiary's projects are so 
highly valued that they are "essential" to the organization. Thus, despite the Petitioner's emphasis on 
the Beneficiary's key role with respect to individual projects and his managerial authority over the 
employees and contractors who carry out the operational tasks that are critical to those projects, the 
Petitioner has not established that the Beneficiary's proposed position will involve primarily managing 
an essential function within the organization. 
In light of the deficiencies described above, we conclude that the Petitioner has not established that 
the Beneficiary will assume the role of a function manager within the organization. 
ORDER: The appeal is dismissed. 
4