dismissed EB-1C Case: Engineering Services

Non-Precedent Decision of the
Administrative Appeals Office 
U.S. Citizenship 
and Immigration 
Services 
Date : WL. 06, 2023 In Re: 27032763 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner , an applied engineering services company , seeks to permanently employ the 
Beneficiary as its chief executive officer (CEO) and president 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 a managerial or 
executive capacity. 
The Director of the Nebra ska Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary had been employed abroad , and would be employed in the United States, 
in a managerial or executive capacity. The Petitioner filed two consecutive combined motions to 
reopen and reconsider with additional evidence . The Director , after considering the Petitioner's legal 
arguments and new evidence on motion , issued two subsequent denials based on the same grounds of 
ineligibility. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa 's, Inc. , 26 l&N Dec. 537, 537 n.2 (AAO 2015) . Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
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 corning 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(j)(3). 
The statute defines "managerial capacity" as 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). 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The primary issue we will address is whether the Petitioner has established that the Beneficiary will 
be employed in a managerial or executive capacity in the United States. The Petitioner has claimed 
that the Beneficiary's offered position of CEO and president meets the requirements for executive 
capacity, and alternatively claims that the position is managerial in nature because it will involve 
supervision of managerial, supervisory, and professional staff 
To establish that a beneficiary is eligible for immigrant classification as a multinational manager or 
executive, a petitioner must show that the beneficiary will perform all four of the high-level 
responsibilities set forth in the statutory definitions at section 101(a)(44)(A) or (B) of the Act. If a 
petitioner establishes that the offered position meets all four elements set forth in either statutory 
definition, the petitioner must then prove that the beneficiary will be primarily engaged in managerial 
or executive 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). 
In determining whether the beneficiary's duties will be primarily managerial or executive, we consider 
the required description of the job duties, the company's organizational structure, the duties of the 
beneficiary's subordinate employees, the presence of other personnel to relieve the beneficiary from 
performing operational duties, the nature of the business, and any other factors that will contribute to 
understanding the beneficiary's actual duties and role in the business. 
A. Job Duties 
The regulation at 8 C.F.R. § 204.5(j)(5) requires that a petitioner "clearly describe the duties to be 
performed." At the time of filing, the Petitioner submitted a letter of support which listed the 
Beneficiary's proposed duties as CEO/president of its engineering design services business. This 
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description was quoted in its entirety in the Director's decision and will not be repeated here. Briefly, 
the Petitioner indicated that the Beneficiary would have nine different areas of responsibility with each 
requiring 5% to 20% of his working time. These responsibilities included: ensuring alignment of 
business strategies and plans with short- and long-term objectives; leading and motivating 
subordinates and developing a managerial team; overseeing all operations and business activities; 
making investment decisions; ensuring adherence to legal guidelines and in-house policies; reviewing 
financial and non-financial reports; building trust with key partners; analyzing problematic situations 
to provide solutions; and maintaining deep industry and market knowledge. 
In a request for evidence (RFE), the Director advised the Petitioner that its description of the 
Beneficiary's proposed position was overly broad and provided little insight into the nature of the 
actual day-to-day job duties he would perform. We agree with this assessment. Many of the 
responsibilities attributed to the position generally paraphrased the statutory definition of executive 
capacity by focusing on the Beneficiary's responsibility for establishing the company's policies, 
strategies and objectives, his responsibility for directing the overall management of the company, and 
his discretionary decision-making authority. However, reciting a beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise 
meeting the definitions would simply be a matter ofreiterating 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). Here, the 
position description was so vague it could have applied to any senior-level position at any company; 
it contained no references specific to the Petitioner's engineering design business, nor did it otherwise 
provide a probative explanation of the Beneficiary's expected day-to-day tasks even though the 
Petitioner had already employed him in the position since 201 7. 
Further, the Petitioner's submission of a vague job description was compounded by the fact it did not 
submit a current organizational chart or otherwise describe the company's structure or staffing. The 
Petitioner indicated on the Form I-140 that it had five employees at the time of filing in January 2021, 
but provided an organizational chart dated February 2020, which listed nine full- and part-time 
positions, with three more expected to be hired in 2020. Overall, the Petitioner's initial submission 
did not contain the necessary detail or an adequate explanation of the Beneficiary's expected day-to­
day activities within the context of its business and staffing structure. 
The Director provided the Petitioner with notice of these deficiencies in a request for evidence (RFE). 
In its response, the Petitioner submitted a new letter with a lengthier description of the Beneficiary's 
duties that included additional information under each area of responsibility. However, it did not 
address or overcome the deficiencies in the initial job description addressed above, and it lacked the 
specific information the Director requested regarding the Beneficiary's actual job duties within the 
context of its business. For example, the Petitioner repeated its initial statement that the Beneficiary 
would spend 12% of his time "to ensure alignment of the developed high quality business strategies 
and plans with short-term and long-term objectives." The Petitioner added that this area of 
responsibility would involve developing long- and short-term strategies, identifying markets and 
major competitors, and formulating policies. Much of the supplemental information added to the 
initial job description was similarly broad and therefore did not shed further light on the Beneficiary's 
actual tasks. For example, the Petitioner added that the Beneficiary will "manage overall operations 
and make major decisions," "oversee operations of the company and conduct day-to-day management 
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decisions," "take responsibility for the financial fate of the company," "demonstrate track record of 
financial success," "make independent decisions when circumstances warrant," "manage the 
Company's resources to steer the Company accordingly," and balance "day-to-day operational issues 
and strategic development initiatives." 
Overall, the job description was general and repetitive and therefore did not adequately explain the 
Beneficiary's specific tasks and how much time he spends on them. While the Petitioner filed two 
subsequent combined motions to reopen and reconsider, it did supplemented the record with additional 
details regarding the Beneficiary's responsibilities as CEO and president, despite the Director's 
determination that the duty description was inadequate. 
The fact that the Beneficiary has the authority to manage or direct a company and holds the senior 
position in the company's organizational chart does not necessarily establish eligibility for 
classification as multinational manager or executive as defined in the statute. By statute, eligibility 
for this classification requires that the duties of a position be "primarily" managerial or executive. 
Although the Petitioner asserts that the Beneficiary would primarily perform the high-level duties 
described at sections 10l(a)(44)(A) or (B) of the Act, it has not met its burden to support this claim 
with a detailed job description and other relevant supporting evidence. 
B. Staffing and Structure 
The Petitioner asserts that the Beneficiary directs and manages the company through subordinate 
managers and other staff: and that it has sufficient staff to relieve him from significant involvement in 
non-executive and non-managerial duties. However, as discussed farther below, it has not provided 
sufficient evidence of its staffing and structure from the time of filing. The Petitioner must establish 
that all eligibility requirements for the immigration benefit have been satisfied from the time of the 
filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
As noted, the Petitioner stated on the Form I-140 that it had five employees as of January 2021 but 
submitted an organizational chart depicting its staffing as of February 2020, at which time it claimed 
two foll-time positions (including the Beneficiary and a chief technology officer), seven part-time 
positions, three positions that were to be filled in 2020, and an outsourced accountant. In the RFE, the 
Director requested a new organizational chart and information regarding all employees and contractors 
employed by the Petitioner, including their position titles, a summary of their duties, and whether they 
work on a foll-time or part-time basis. The Director also asked the Petitioner to provide evidence of 
their employment in the form of payroll summaries and tax documents such as IRS Forms 941, W-2 
and 1099. The Director emphasized that the RFE response should explain the administrative and 
productive tasks necessary for the operation of the company and identify who performs these tasks. 
The Petitioner responded to the RFE in February 2022. In a supporting letter, the Beneficiary stated 
( on behalf of the Petitioner) that "there are 2 foll time senior managers as well as administrative staff 
reporting directly to me." The Petitioner provided an organizational chart dated October 2020 which 
identified a staff of 14, including the Beneficiary, the CTO and a project manager (all identified as 
foll-time employees); an office manager, a CAD designer and a mechanical engineer (all identified as 
part-time employees); seven "individual contractors" (including two consultants, two engineers, a 
technician and a system administrator); and a draftsman who is identified as "shortlisted staff to be 
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hired in 2020." The record does not contain an organizational chart depicting the Petitioner's structure 
at the time of filing or at the time of the RFE response. 
The Petitioner provided a separate "List of employees in CEO's immediate supervision." The 
Petitioner explained that the company operates through four divisions - technology, project, 
administrative, and consultants - and noted that the beneficiary has "overall control for all four 
divisions." This statement provided information regarding the duties, wages, and educational and 
professional background of the CTO (hired February 2017) and project manager (hired October 2020). 
The Petitioner indicated that they are both foll-time employees who report directly to the Beneficiary, 
while the administrative division provides "backup office support" and is staffed by a part-time office 
and procurement manager, a CPA/accountant who is on a fixed cost outsource contract, and a system 
administrator who is paid on an hourly basis. 
As evidence of wages paid to employees, the Petitioner provided copies of its IRS Forms 941, 
Employer's Quarterly Federal Tax Return, for the first, second and fourth quarters of 2020 and the 
first quarter of 2021. The Petitioner reported two employees in the first quarter of 2021 and one or 
two employees throughout 2020. The Petitioner's RFE response also included copies of three 2021 
IRS Forms W-2 issued to the Beneficiary, the CTO, and to the individual identified as the foll-time 
project manager. 1 Finally, the Petitioner submitted its payroll journal for December 2021, which 
indicates that the Petitioner paid the Beneficiary, the CTO and the project manager on an hourly basis, 
and that they worked 84 hours, 88 hours and 48 hours, respectively, during that month, despite the 
Petitioner's claim that all three are foll-time employees. The Petitioner did not provide evidence of 
payments made to any of the individuals identified in the record as contractors or part-time employees, 
document that it had five employees at the time of filing (as stated on the Form I-140), or corroborate 
that it maintained the staffing levels depicted on either of its submitted organizational charts from 
2020. 
In the initial decision issued on March 15, 2022, the Director emphasized that there were unresolved 
ambiguities in the record regarding the Petitioner's staffing levels and that the Petitioner had not met 
its burden to establish that it had sufficient subordinate staff or contractors to relieve the Beneficiary 
from significant involvement in the day-to-day activities of the company, or the organizational 
complexity to support an executive position. In its subsequent motions, the Petitioner supplemented 
the record with some additional evidence related to its staffing levels. We have reviewed this 
documentation and the Petitioner's explanations regarding its personnel structure; however, the record 
continues to lack sufficient evidence of the company's staffing levels from the date of filing. 
The additional evidence submitted on motion included copies of the Petitioner's contracts with the 
three individuals identified by the Petitioner as its office manager, CAD design specialist, and data 
engineer, along with copies of IRS Forms 1099 issued to these individuals for 2020. The office 
manager had a one-year contract with a starting date in February 2020 and an hourly wage of $25. 
Her Form 1099 indicates that she earned $4400, which reflects that she was paid for 176 hours of 
work. The CAD design specialist had a six-month contract indicating that she would work on a part­
time basis at an hourly rate of $32, with a start date of February 1, 2020. According to her 2020 Form 
1 Although claimed to be a full-time employee, the project manager earned only $11,793. Based on this individual's hourly 
wage of$49.12. it appears he worked approximately 240 hours in 2021. 
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1099, she was paid $3,072, which reflects that she was paid for 96 hours of work during 2020. Finally, 
the data engineer had a one-year contract commencing in April 2020 and a $35 hourly wage. He 
earned $15,260 in 2020, which equates to 436 hours of work. The record does not contain evidence 
that these part-time employees remained with the company for the duration of their contracts, that they 
signed new contracts, or that the Petitioner made any payments to them in 2021 and beyond. Based 
on the evidence provided, we cannot determine whether any of these employees remained with the 
company at the time of filing in January 2021. 
The Petitioner also provided evidence that it had filed three H-lB nonimmigrant petitions between 
June and September 2021. These petitions were approved with validity dates commencing in March 
2022, more than one year after the petition was filed. However, a petitioner must establish eligibility 
for a requested benefit "at the time of filing the benefit request." 8 C.F.R. § 103.2(b)(l); see also 
Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). While such evidence may support the 
Petitioner's claim that the company is poised for growth, it does not assist in establishing that the 
company had sufficient staff in place at the time of filing to relieve the Beneficiary from involvement 
in operational, technical, and administrative tasks that fall outside the scope of the definitions of 
managerial and executive capacity. 
Based on the evidence provided, the Petitioner has not corroborated its initial claim that it had five 
employees at the time of filing in January 2021. Although the Petitioner indicates on appeal that the 
"actual number of employees can be extracted from payroll records and 1099s filed," it provided 
Forms 1099 for 2020 only, and provided minimal evidence of its staffing for 2021. The Petitioner 
reported only two employees on its IRS Form 941 for the first quarter of 2021 and therefore did not 
document that the Beneficiary and both of his claimed direct subordinates (the CTO and the project 
manager) were all on the payroll at that time. As discussed, while it appears that two of the company's 
part-time staff paid on Form 1099 may have remained under contract at the time of filing, the record 
lacks evidence of any payments made to them in 2021. The only staff clearly engaged at the time of 
filing, based on the supporting evidence, are the Beneficiary, the chief technology officer, and the 
outsourced accountant. While the Petitioner submitted organizational charts from 2020 showing a 
more complex structure, it has not demonstrated that this structure was in place when the petition was 
filed. The Petitioner's claim that it operates through four staffed departments is not supported by the 
record. 
The Petitioner has consistently claimed, on motion and on appeal, that the Director improperly inferred 
an "organizational complexity" requirement from the statutory definition of executive capacity at 
section 10l(a)(44)(B) of the Act and placed undue emphasis on the size of the company. If staffing 
levels are used to determine whether a beneficiary's job capacity is primarily executive or managerial 
in nature, USCIS considers the reasonable needs of the business enterprise in light of its overall 
purpose and stage of development. See section 10l(a)(44)(C) of the Act. It is the petitioner's burden 
to demonstrate the company's reasonable needs with respect to organization's staffing and structure. 
While the statutory definitions of managerial and executive capacity do not expressly require a certain 
level of organizational complexity, it is appropriate for USCIS to consider the size of the petitioning 
company in conjunction with other relevant factors, such as the absence of employees who would 
perform the non-managerial or non-executive operations of the company. Family Inc. v. USCIS, 469 
F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
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The Petitioner contends that regardless of the number of employees at any given time and the number 
of hours they work, the Beneficiary is "completely relieved" from involvement in operational and 
administrative tasks and performs only executive or managerial functions. It explains the project­
focused nature of its business activities, emphasizing that it provides its services as a contractor or 
subcontractor on government-funded projects with set budgets, tasks, and limitations on employee 
hours. The Petitioner states that its need to work within these confines justifies its employment of a 
smaller permanent staff and explains any perceived discrepancies in the company's staffing levels, 
noting that some employees may have varying dates of service and employment status depending on 
the project assignment. The Petitioner also notes that while its role is limited to the engineering design 
phase of such projects, some related tasks may be assigned to and performed in cooperation with the 
primary grant recipient while others may be performed by organizations that work under the 
Petitioner's guidance. 
While we acknowledge the project-based nature of the Petitioner's act1v1t1es, it remains the 
Petitioner's burden to document its actual staffing levels and organizational structure from the date of 
filing. As discussed, the Petitioner has not met this burden, nor has it submitted sufficient objective 
evidence to resolve the inconsistencies in the record surrounding its staffing. Further, while the 
Petitioner appears to claim that its staffing needs are minimal at times depending on the number of 
active projects or the phase of each project, the record contains little information regarding the projects 
active at the time of filing or their staffing requirements. In its letter in response to the RFE, the 
Petitioner indicated that it was engaged as a "major technology developer" for two ongoing California 
Energy Commission (CEC) projects with expected completion dates in 2024, and as a "technology 
verification partner" for three additional active CEC projects expected to continue through 2023 or 
2024. Due to the deficiencies in the evidence relating to the Petitioner's staffing at the time of filing 
through adjudication, the Petitioner has not supported its claim that the Beneficiary is and would be 
"consistently relieved" from performing any non-managerial or non-executive duties related to the 
company's daily operations and these multiple ongoing projects. Although the Petitioner indicates 
that some project-related tasks are performed by other contractors assigned to work under its 
supervision, it has not submitted evidence to support that claim. 
Finally, while the Petitioner claims that the Beneficiary's position satisfies the definition of managerial 
capacity based on his supervision of managerial, supervisory or professional subordinates, the record 
does not establish that he primarily performs duties consistent with the statutory definition at section 
10l(a)(44)(A) of the Act. The record reflects that the Petitioner's CTO and project manager are 
professionals with advanced degrees and may perform supervisory duties at times, but does not 
establish that the Beneficiary would spend a significant portion of his time supervising and controlling 
their work; in fact, it is unclear whether both of these employees were on the Petitioner's payroll at 
the time of filing. Further, as noted by the Director, the job description submitted for the Beneficiary, 
despite lacking the required specificity, broadly describes responsibilities that would typically fall 
within the definition of executive capacity at section 10l(a)(44)(B) of the Act. 
Regardless of whether the Beneficiary is claimed to be managerial capacity or an executive capacity, 
the Petitioner must establish how he would be relieved from significant involvement in the company's 
day-to-day administrative and operational tasks; it is not sufficient for the Petitioner to rely on an 
overly broad position description and an organizational chart depicting the Beneficiary in a senior 
position. Here, the Petitioner did not provide the required detailed description of the Beneficiary's 
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proposed job duties in the United States, probative evidence corroborating its staffing levels and 
structure in the United States at the time of filing through adjudication, or sufficient probative evidence 
to establish how the Beneficiary is otherwise relieved from involvement in the day-to-day operations 
of company, based on its reasonable needs. All this evidence is critical in evaluating the Petitioner's 
claim that the Beneficiary will be employed in a managerial or executive capacity in the United States, 
and we cannot reach a favorable determination on this issue in its absence. 
For the reasons discussed, the Petitioner has not established that the Beneficiary would be employed 
in the United States in a managerial or executive capacity. 
III. RESERVED ISSUE 
As noted, the Director also concluded that the Petitioner did not establish that the Beneficiary was 
employed abroad in a managerial or executive capacity. Because the identified basis for denial is 
dispositive of the appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments 
regarding this remaining ground for denial. 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 ofL-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to 
reach alternative issues on appeal where an applicant is otherwise ineligible). 
IV. PRIOR APPROVALS 
The Petitioner notes that USCIS has approved L-lA nonimmigrant intracompany transferee petitions 
that had been previously filed on behalf of Beneficiary. The L-1 A nonimmigrant classification relies 
on the same statutory definitions of managerial capacity and executive capacity at section 10l(a)(44) 
of the Act. 
Eligibility as an L- lA nonimmigrant does not automatically establish eligibility under the criteria for 
an immigrant visa classification for a multinational executive or manager. Each petition is separate 
and independent and must be adjudicated on its own merits, under the corresponding statutory and 
regulatory provisions. Therefore, the fact that a beneficiary was previously approved for L-lA 
classification is not binding if the facts do not support approval of the immigrant petition. For the 
reasons discussed above, the Petitioner has not met its burden to establish the Beneficiary's eligibility 
for classification as a multinational executive or manager. Further, we are not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See Matter of Church Scientology Int'!, 19 I&N Dec. 593, 
597 (Comm'r 1988); see also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). 
V. CONCLUSION 
The Petitioner has not established that it will employ the Beneficiary in a managerial or executive 
capacity in the United States. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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