dismissed EB-1C Case: Financial Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-7-L- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 5, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a financial services training company, seeks to permanently employ the Beneficiary as 
its "Head of Investment Banking Training, Americas" 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). 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 on multiple grounds concluding that 
the Petitioner did not establish that: ( 1) it had a qualifying relationship with the Beneficiary's foreign 
employer; (2) it had the ability to pay the Beneficiary's proffered salary in the United States; and (3) 
Beneficiary would be employed in a managerial or executive capacity in the United States. 
On appeal, the Petitioner asserts that it is not required, as emphasized by the Director in the denial 
decision, to submit its annual income tax returns to substantiate its ownership and it points to a blanket 
petition granted by United States Citizenship and Immigration Services (USCIS) to substantiate its 
qualifying relationship. Further, the Petitioner contends that submitted evidence demonstrates that the 
Beneficiary was paid his proffered wage in 2017 and 2018 . 1 Lastly, the Petitioner states that the 
Director improperly denied the petition only because the Beneficiary's subordinates are contractors 
and asserts that he qualifies as a manager of an essential function of the organization . 
Upon de nova review, we conclude that the Petitioner did not establish that it has the ability to pay the 
Beneficiary's proffered wage or that he would be employed in the United States in a managerial or 
executive capacity; for these reasons, we will dismiss the appeal. Because of the dipositive effect of 
these determinations, we will reserve the remaining ground for denial discussed in the Director's 
decision . 
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 
1 The petition was filed on March 30, 2018. 
Matter of F- 7-L- Inc. 
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 
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. ABILITY TO PAY 
The first issue we will address is whether the Petitioner has established that it had the ability to pay 
the Beneficiary's proffered wage. 
The pertinent regulation at 8 C.F.R. § 204.5(g)(2) states: 
Any petition filed by or for an employment-based immigrant which requires an offer 
of employment must be accompanied by evidence that the prospective United 
States employer has the ability to pay the proffered wage. The petitioner must 
demonstrate this ability at the time the priority date is established and continuing until 
the beneficiary obtains lawful permanent residence. Evidence of this ability shall be 
either in the form of copies of annual reports, federal tax returns, or audited financial 
statements. In a case where the prospective United States employer employs 100 or 
more workers, the director may accept a statement from a financial officer of the 
organization which establishes the prospective employer's ability to pay the proffered 
wage. In appropriate cases, additional evidence, such as profit/loss statements, bank 
account records, or personnel records, may be submitted by the petitioner or requested 
by the Service. 
In denying the petition on this ground, the Director pointed to the fact that the Petitioner did not submit 
any of the required evidence explicitly set forth in the regulations to establish an ability to pay; namely, 
either copies of annual reports, federal tax returns, or audited financial statements. The Director 
acknowledged that the Petitioner submitted the Beneficiary's 2017 and 2018 IRS Forms W-2 
reflecting that he earned more than his proffered wage during these years, but noted that this evidence 
was secondary and did demonstrate a continuing ability to pay his wage. Further, the Director 
indicated that submitted paystubs reflected that the Beneficiary's wage was paid b~ I 
not the Petitioner. 
On appeal, the Petitioner asserts that it has submitted evidence which establishes that the Beneficiary 
was paid "considerably more" than his proffered wage in 2017 and 2018 and contends that paystubs 
reflecting an "outsourcing/payroll provider" do not invalidate the fact that he has been paid his 
proffered wage over the last two years. 
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Matter of F- 7-L- Inc. 
In determining a petitioner's ability to pay the proffered wage, United States Citizenship and 
Immigration Service (USCIS) first examines whether the beneficiary was employed and paid by the 
petitioner during the period following the priority date. A petitioner's submission of documentary 
evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage for 
the time period in question, when accompanied by a form of evidence required in the regulation at 8 
C.F.R. § 204.5(g)(2), may be considered proof of the petitioner's ability to pay the proffered wage. 
Although the Petitioner provided 2017 and 2018 IRS Forms W-2 reflecting that the Beneficiary was 
paid more than his proffered wage during these two years, it has not submitted the required 
accompanying documentation explicitly required by the regulations to demonstrate a continuing 
ability to pay his wage; specifically, either copies of annual reports, federal tax returns, or audited 
financial statements. For this reason, the Petitioner has not established the ability to pay the 
Beneficiary's proffered wage consistent with the regulations. 
III. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The next issue we will address is whether the Petitioner established that the Beneficiary would act in 
a managerial capacity in the United States. The Petitioner did 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 
101(a)(44)(A) of the Act, 8 U.S.C. § 1101(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(j)( 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 was performing certain high-level responsibilities. Champion World, Inc. v. INS, 940 
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Matter of F- 7-L- Inc. 
F.2d 1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the 
Beneficiary was 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. 
The Petitioner indicated that it is part of a group of multi-national companies that provide "learning 
and development solutions for the global financial services industry." The Petitioner stated that the 
Beneficiary is one of three "senior experienced managers" serving as heads of faculty. It further 
explained that the Beneficiary is responsible for directing "regional training initiatives and manag[ing] 
teams of financial instructors" and "overseeing all the Investment Banking training initiatives." The 
Petitioner stated that the Beneficiary "plays a key role in maintaining our training quality, by managing 
the Financial Instructors and guiding them for effective delivery." 
The Petitioner also listed some of the following duties for the Beneficiary: 
• Assess and effect changes in the team's structure to order to meet business growth 
goals, as well as conducting interviews, training team members, and making 
hiring/layoff decisions, 
• Lead, inspire and motivate team to ensure seamless delivery of training, 
• Collaborate with Client Relationship Team, Planning Manager and Project 
Manager, on allocation/assigning trainers for courses delivered, considering the 
individual expertise, prior feedback, and client requirements, 
• Provide direction and subject matter expertise to his team of instructors, 
• Ensure the effective delivery of training courses by his team to in-house clients and 
the public, 
• Review performance and set up objectives for each financial instructor, 
• Provide direction on the development of employees and map their training needs, 
• Ensure continuous improvement, maintenance, and adjustment in program delivery 
approaches, 
• Report division results to senior management and key stakeholders for strategic 
decision making, 
• Drive the development of programs that incorporate overall business objectives, 
• Implement, improve, and measure efficiencies of planning, process, scope control, 
issue management, and project execution of his department, 
• Conduct client visits to evaluate effectiveness of trainings and modify them where 
necessary, 
• Establish goals and policies of Investment Banking Training and implement 
initiatives, 
• Ensure on-target delivery of training programs within service level agreements, 
• Continue overall ownership of training programs within service level agreements, 
including defining objectives of different courses to be delivered, 
• Make daily decisions regarding courses delivered by instructors to in-house clients, 
• Direct the investment banking course creation and delivery for the Americas 
including adjusting training materials, 
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Matter of F- 7-L- Inc. 
• Oversee the conceptual design, implementation, and maintenance of all advanced 
training products, 
• Work with instructional design team to ensure concepts are understood and 
developed and provide technical direction and expertise in complex training areas, 
• Liaise closely with the sales team, provide direction on potential client needs, work 
with them to understand client requirements and translate these needs into 
investment banking business opportunities, 
• Present regular workshops to train the sales team on new initiatives, products, and 
client change needs, 
• Drives business initiatives with clients, including proposing new products/courses 
and focused group discussions for products in development stage, 
• Manage sales pitches to expand business, including providing direction on RFPs, 
understand client budget requirements and provide direction on product mix, and 
engage trainers for instructional design inputs, and 
• Oversee the delivery of customized financial training programs. 
The Petitioner has submitted a duty description for the Beneficiary indicating that he would more 
likely than not be primarily engaged in non-qualifying operational duties. For instance, the 
Beneficiary's duty description included non-qualifying operational tasks related to the direct provision 
of services to customers throughout. The Beneficiary's duty description generically indicated that he 
would devote his time to the following general categories of duties: 1) manages and controls the work 
of 18 professional employees and exercises wide latitude and day-to-day discretionary decision 
making of the professional employees (50%); 2) manages and oversees the investment banking 
training, a major function of the [Petitioner] organization (30%); 3) [the Beneficiary] exercises 
discretion over the day-to-day operations of the investment banking training function for which he has 
authority (20% ). However, within each of the categories above, the Petitioner assigned percentages 
to individual tasks that did not equate to the total percentage of time devoted to each general category, 
thereby making it difficult to discern the amount of overall time he would devote to each of his 
individual tasks. 
This is noteworthy, as within each general category, many of the specific tasks reflected that the 
Beneficiary would be responsible for non-qualifying operational duties relevant to directly providing 
services to clients, such as organizing client trainings, collecting client requirements, conducting client 
visits, ensuring on-target delivery of services, gathering post-training program feedback, making 
training course content improvements, and adjusting training materials. Likewise, the Beneficiary's 
individual tasks reflected that the Beneficiary would be responsible for providing technical direction 
and expertise, working with colleagues to understand client requirements, training its sales force on 
client needs, proposing products and courses to clients, managing sales pitches and requests for 
proposals, and delivering financial training programs. 
In contrast, there is little detail and documentation as to how the Beneficiary would delegate non­
qualifying operational tasks included in and inherent to his duty description. For instance, the 
Beneficiary's duty description indicates that he would "manage" or "oversee" the provision of services 
to clients; however, the submitted evidence reflects that he would only direct subordinate part-time 
trainers and it is not clear who would perform the other operational duties necessary to provide services 
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Matter of F- 7-L- Inc. 
to clients. For instance, although the Petitioner vaguely stated that the Beneficiary would coordinate 
with a "sales team," an "instructional design team," and "planning" and "project managers," it 
provides little detail and no supporting documentation to substantiate that he coordinates with these 
non-subordinates and primarily delegates non-qualifying operational tasks to them. Without this detail 
and evidence, it appears more likely than not that the Beneficiary is primarily involved in non­
qualifying operational tasks related to the direct provision of services to clients, duties which are 
widely referenced in its duty description, such as visiting client locations, collecting their 
requirements, formulating solutions for them, presenting these solutions, collecting client feedback on 
their services, coordinating trainings and trainers, making course changes and improvements, creating 
course materials, among other similar service delivery type tasks. 
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 101(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 a substantial amount 
of apparent non-qualifying operational tasks throughout that indicate that he would be primarily 
involved in providing training services directly to clients. 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). 
Furthermore, the Petitioner submits few examples and little supporting documentation to substantiate 
the qualifying managerial duties the Beneficiary would perform on a daily basis. To the extent the 
Beneficiary's duty description discusses apparent qualifying duties, they are generic, and could apply 
to any manager acting in any business or industry and they do not provide insight into the actual nature 
of his role. The Petitioner provided insufficient examples and little supporting documentation to 
demonstrate the Beneficiary's performance of qualifying duties, such as hiring and firing decisions he 
made, training needs of his subordinates he addressed, program delivery approaches he adjusted, 
programs he developed, "efficiencies of planning process, scope control, or issue management" he 
implemented, or goals, policies and strategies he established. In fact, it is noteworthy that there are 
few specific examples of the Beneficiary's managerial tasks and accomplishments and little supporting 
documentation on the record of these activities, despite asserting that he has worked in a managerial 
capacity since January 201 7, more than a year prior to the date the petition was filed. 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. F edin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Even though the Beneficiary holds a senior position within the organization, the fact that he 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 
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Matter of F- 7-L- Inc. 
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. 
In support of the petition, the Petitioner indicated that the Beneficiary supervised sixteen subordinate 
financial instructors who "are highly qualified professionals" and explained that they were required to 
have master's degrees in finance or be "CF A or CQF" qualified. In an RFE response letter, the 
Petitioner listed 18 financial instructors the Beneficiary oversaw, all of which were listed as "part­
time" contractors. The chart indicated that the financial instructors earned varying amounts of 
compensation, including as much as $120,000 per year or as little as $20,000. 
As previously discussed, the Petitioner asserts that the Beneficiary would act in a managerial capacity 
in the United States. The statutory definition of "managerial capacity" allows for both "personnel 
managers" and "function managers." See section 10l(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(j)(2). 
The Petitioner has not demonstrated that the Beneficiary would qualify as a personnel manager. The 
Petitioner has not submitted sufficient evidence to establish that the Beneficiary has personnel 
authority over 18 contracted financial instructors in the United States as claimed. The Director 
requested in the RFE that the Petitioner submit evidence to substantiate the extent to which the 
Beneficiary's contractor subordinates are engaged by the company; however, the Petitioner did not 
provide this evidence. Despite the denial of the petition citing this deficiency, among others, the 
Petitioner submits no evidence on appeal to remedy it, such as contracts with the Beneficiary's claimed 
subordinates or other documentation to demonstrate how often they work for the company. Further, 
the Petitioner has provided little documentation to corroborate that the Beneficiary exercises personnel 
authority over his claimed subordinate contractors. This lack of evidence stands in contrast to the 
documentation the Petitioner submitted with respect to the Beneficiary's foreign employment, which 
includes several emails reflecting him acting as a personnel manager with respect to his foreign 
subordinates, such as him reviewing them after a probationary period or approving their leave, 
amongst other personnel manager related duties. 
We acknowledge that the Petitioner did submit asserted annual performance reviews the Beneficiary 
completed for five of his claimed U.S. contractor subordinates. First, we note that the Petitioner only 
submitted personnel documentation specific to five contractors, while the most recent listing of 
financial instructors reflected that he supervised 18. Regardless, these brief one page reviews only 
included a sentence of narrative, such as "the clients had great feedback." These performance reviews 
did not sufficiently demonstrate that the Beneficiary was exercising supervisory authority over these 
contractors or that he was devoting a substantial portion of his time acting as their manager. For 
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Matter of F- 7-L- Inc. 
instance, the provided annual performance reviews indicated that none of these five contractors logged 
more than 23 "training days" during that year, while one reflected annual training hours as low as four 
annual hours. 
Otherwise, the record includes little evidence of the Beneficiary regularly exerc1smg personnel 
authority over his claimed subordinate professionals. The limited training hours reflected in the 
subordinate trainers' performance reviews ( a maximum of 23 hours of annual training for one 
contractor) leaves uncertainty as to whether the Beneficiary would devote his time primarily to 
overseeing subordinate professionals and raises question as to what duties he is performing with the 
vast majority of his remaining time. As noted, the Petitioner did not submit other supporting 
documentation requested by the Director to substantiate the amount of time these subordinate 
contractors work for the company to sufficiently demonstrate the time the Beneficiary spends in 
supervising them. The Petitioner must resolve these insufficiencies 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). Therefore, the Petitioner has not submitted sufficient evidence to demonstrate that the 
Beneficiary qualifies as a personnel manager based on his supervision of subordinate professionals. 
In addition, given the apparently limited time that the Beneficiary's subordinates work for the 
company as reflected in the five submitted performance reviews, this leaves further uncertainty as to 
how he is primarily relieved from performing non-qualifying operational duties. The performance 
reviews and the duty descriptions of the financial instructors indicate that they teach courses; however, 
it is not clear who performs all the other related client services such as meeting with clients, collecting 
their requirements, generating training solutions for them, submitting invoices and payments; amongst 
other operational tasks, several of which are listed in the Beneficiary's duty description. The Petitioner 
did not submit a greater organizational chart to indicate if there are other employees devoted to these 
tasks, nor did it explain how the Beneficiary is relieved from performing these duties. 
In the alternative, the Petitioner contends that the Beneficiary would act as a function manager. The 
term "function manager" applies generally when a beneficiary does not 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 
will exercise discretion over the function's day-to-day operations." Matter of G- Inc., Adopted 
Decision 2017-05 (AAO Nov. 8, 2017). 
In this matter, the Petitioner has not sufficiently described the Beneficiary's claimed essential function. 
For instance, as we discussed, there is limited information on how the Beneficiary's function operates, 
such as who performs the non-qualifying operational duties within the function, particularly those 
related to not teaching courses. As we have discussed, the Petitioner submits a duty description 
discussing various non-qualifying operational tasks, but it does not articulate or document how the 
Beneficiary is relieved from performing these duties. This concern is heightened by the lack of 
8 
Matter of F- 7-L- Inc. 
evidence of how often the claimed subordinate instructors are engaged by the Petitioner and the 
absence of documentation substantiating that the Beneficiary delegates non-qualifying duties to others. 
In addition, the provided performance reviews for the financial instructors indicate that the work very 
limited hours on an annual basis. Therefore, the evidence suggests that the Beneficiary is more likely 
performing his function, rather than managing it. 
On appeal, the Petitioner points to Matter of G- Inc. as persuasive in demonstrating that the Beneficiary 
qualifies as a function manager. In that matter, the petitioner provided substantial evidence to establish 
that the beneficiary directed the work of various teams across its five business units and six geographic 
delivery areas and that they provided revenue estimates to the chief executive and board of directors. 
In addition, the evidence in that case reflected that the beneficiary's subordinate personnel performed 
the routine duties associated with the function, enabling him to primarily develop policies and goals 
and oversee the execution oflong-term strategies. Matter of G-Inc., Adopted Decision 2017-05 (AAO 
Nov. 8, 2017). In contrast, the Petitioner has provided little evidence that the Beneficiary would be 
primarily relieved from performing the non-qualifying operational tasks. In fact, it submits a duty 
description reflecting that the Beneficiary would likely perform many of the duties necessary to 
provide services to its clients and it has otherwise not sufficiently documented his daily managerial 
tasks. For instance, there is little evidence on the record reflecting the Beneficiary delegating non­
qualifying duties to his subordinates or to other employees within the company. As such, the Petitioner 
has not established that the Beneficiary would qualify as a function manager. 
For the foregoing reasons, the Petitioner has not submitted sufficient evidence to establish that the 
Beneficiary would act in a managerial capacity. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofF-7-L-Inc., ID# 6552848 (AAO Dec. 5, 2019) 
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