dismissed EB-1C Case: Financial Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 7378617 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 11, 2020 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as an investment banking and financial services company, seeks to 
permanently employ the Beneficiary as a senior vice president in the United States under the first 
preference immigrant classification for multinational executives or managers. Immigration and 
Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
The Director of the Nebraska Service Center denied the petition concluding that the Petitioner did not 
establish that the Beneficiary would be employed in a managerial or executive capacity in the United 
States. The Petitioner later filed a motion to reopen and a motion to reconsider which were also denied 
by the Director. The matter is now before us on appeal. 
On appeal, the Petitioner asserts that it submitted sufficient evidence to establish that the Beneficiary 
would act as a personnel manager overseeing subordinate professionals. Further, in the alternative, 
the Petitioner also contends that the Beneficiary would qualify as a function manager overseeing an 
essential function in the United States. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that the decision was based on an incorrect 
application oflaw or U.S. Citizenship and Immigration Services (USCIS) policy and that the decision 
was incorrect based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. 
§ 103.5(a)(3). A motion may be granted that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
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 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(i)(3). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The sole issue we will address is whether the Director was correct in dismissing the Petitioner's 
previous motion to reopen and motion to reconsider. As noted, the Petitioner was required to 
demonstrate the Beneficiary's eligibility for the requested benefit in order for the motion to reopen or 
the motion to reconsider to be granted by the Director. Therefore, the sole issue we will address is 
whether the Petitioner established that the Beneficiary would act in a managerial capacity in the United 
States. The Petitioner does not claim that the Beneficiary would be employed in an executive 
capacity. Therefore, we restrict our analysis to whether the Beneficiary would be employed in a 
managerial capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act, 8 U.S.C. § l 10l(a)(44)(A). 
When examining the managerial capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are in a managerial 
capacity. 8 C.F.R. § 204.S(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 will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
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1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the Beneficiary 
will be primarily engaged in managerial duties, as opposed to ordinary operational activities alongside 
the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d 1533. 
The Petitioner stated that the Beneficiary had acted, since August 2015, as a senior vice president in 
the United States "within the Commodities and Global Markets Group ("CGM")." The Petitioner 
indicated that this position was a managerial position within the company's worldwide organizational 
structure and "within the investment banking industry as a whole." The Petitioner explained that 
within CGM, the Beneficiary also served "as [the] Head of Direct Market Access ("DMA") Sales and 
Execution" and that he has been, and would be, "responsible for leading the origination of [the 
company's] futures execution business" in the United States. It further stated that the Beneficiary's 
position held "particular emphasis on selling DMA solutions, developing and implementing business 
development strategies, and generating leads and aligning sales activities with the business' overall 
goals." It also indicated that he was responsible for "generating revenue, increasing market exposure, 
launching new initiatives, and broadening the depth of product coverage." 
In response to the Director's request for evidence (RFE), the Petitioner listed the following duties for 
the Beneficiary in the United States: 
Leading the origination of [the Petitioner's] futures execution business in the 
Americas ( 40% ), including 
o selling [the Petitioner's] futures execution and clearing platform with particular 
emphasis on selling DMA solutions (15%), developing and implementing 
business development strategies (15%), and generating leads and aligning sales 
activities with the business's overall goals with a focus on the global macro and 
commodity derivatives market sectors (energy and agriculture) (10%). 
Generating revenue, increasing market exposure, launching new initiatives, and 
broadening the depth of product coverage of thel !execution desk as well as 
approving several new products and ensuring internal controls are in place for the 
business to pursue new business activities (30%). 
Growing the North American futures business into a mature and marketing leading 
business (30%), including 
o leading the sale of wider value-added CGM products and services within the 
institutional investor community with an emphasis on Financial Information 
Exchange ("FIX") connectivity and Order Management System ("OMS") 
integration (20% ), and 
o maintaining considerable client contact and liaising as an account manager with 
a focus on continued growth and serving as the North America contact point for 
the global CGM Futures DMA business (10%). 
The Petitioner submitted a U.S. duty description for the Beneficiary that does not sufficiently 
demonstrate that he would devote a majority of his time to qualifying managerial level duties. For 
instance, the provided duty description includes several tasks that appear related to the direct provision 
of services for clients, such as him selling futures and "DMA solutions" (15% of his time); generating 
leads (10% of his time); "generating revenue" and "broadening the depth of coverage" at his execution 
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desk" (30% of his time); "leading the sale of wider value-added CGM products and services" (20% of 
his time); and "maintaining considerable client contact and liaising as an account manager." The 
description also indicated that he was responsible for "serving as the North America contact point" for 
global CGM and DMA business (10% of his time). Although there are some managerial tasks included 
within the description, the aforementioned non-qualifying operational sales tasks appear to 
predominate, leaving substantial uncertainty as to whether he would be primarily relieved from these 
tasks in his U.S. position. 
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 operational tasks. Although 
the Petitioner lists some managerial tasks within the Beneficiary's duty description, it also provides 
tasks throughout his duty description indicating that he would be primarily involved in providing 
services 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). 
In contrast, there is insufficient detail and little supporting documentation to substantiate the 
Beneficiary's performance of qualifying managerial tasks, including him delegating duties to his 
claimed professional subordinates or overseeing personnel actions with respect to them. Likewise, the 
Petitioner provides few specific examples and little documentation to substantiate the business 
development strategies the Beneficiary developed, overall business goals he set, new initiatives he 
launched, or internal controls he put in place. This lack of detail and documentation is particularly 
noteworthy since the Petitioner asserts that the Beneficiary has been acting in his managerial role in 
the United States for approximately two and half years since August 2015. 1 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 ofreiterating the regulations. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'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 a portion of the business does not necessarily establish eligibility for classification 
as a multinational manager within the meaning of section 10l(a)(44)(A) of the Act. The Beneficiary 
may exercise discretion over the Petitioner's day-to-day operations and possess the requisite level of 
authority with respect to discretionary decision-making; however, the position description alone is 
insufficient to establish that his actual duties would be primarily managerial in nature. 
B. Staffing and Function Manager 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose 
and stage of development. See section 101 (a)( 44 )( C) of the Act. 
1 The petition was filed on February 23, 2018. 
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The Petitioner indicated that the Beneficiary manages, and would manage, "three degreed professional 
employees;" specifically, two vice presidents '{ J CGM]" and an associate 
",.__ _______ __, CGM]." 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). 
To determine whether a beneficiary manages professional employees, we must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a U.S. 
baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation"). Section 101 ( a)(32) of the Act, states that "[t ]he term profession shall include but not be 
limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." Therefore, we must focus on the level of education 
required by the position, rather than the degree held by subordinate employee. The possession of a 
bachelor's degree by a subordinate employee does not automatically lead to the conclusion that an 
employee is employed in a professional capacity. 
The Petitioner has not sufficiently demonstrated that the Beneficiary would qualify as a personnel 
manager managing professional employees as claimed. First, the Petitioner did not submit 
comprehensive duty descriptions for the Beneficiary's claimed professional subordinates to 
demonstrate that these positions require a bachelor's degree. In fact, the Director noted this material 
deficiency in both of her previous decisions. However, despite numerous opportunities; namely, in 
response to the RFE, on motion, and now on appeal, the Petitioner has not provided this evidence 
critical to establishing that the Beneficiary subordinate positions are professionals as asserted. For 
this reason, we cannot determine if these positions are professional as defined by the regulations. 
The Petitioner also did not sufficiently substantiate that the Beneficiary has personnel authority over 
his claimed professional subordinates. For instance, the Petitioner stated that the Beneficiary has "the 
authority to recommend ... hiring, promotion, and termination, including assigning reviewing, and 
evaluating their work and participating in their mid-year and annual performance/promotion and 
compensation reviews." However, it did not submit supporting documentation to establish that the 
Beneficiary had, and would have, the authority to hire, fire, and/or recommend personnel actions with 
respect to his claimed subordinates. In fact, a letter from the Petitioner's human resources manager 
stated that this employee had "access to the global personnel records of [the company]," yet none of 
these documents are provided to corroborate the Beneficiary's personnel authority. The Petitioner 
only provided general information related to the company's "global performance appraisal and profit­
sharing process" that was not specific to the Beneficiary or his asserted subordinates. The Petitioner 
did not provide probative evidence to substantiate the Beneficiary's claimed personnel authority, such 
as evidence of the mid-year or annual performance appraisals he conducted for his asserted 
subordinates, documentation of profit sharing decisions he made with respect to them, or any other 
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documentary evidence of his managerial authority over them. This lack of supporting evidence, in 
light of the lack of duty descriptions for these positions, leaves substantial question as to whether the 
Beneficiary acts as a personnel manager over his claimed professional subordinates. The lack of this 
documentation to substantiate that the Beneficiary's acts as a personnel manager with respect to his 
claimed professional subordinates is particularly noteworthy since the Petitioner indicates that he has 
been acting in this role for approximately two and a half years. Therefore, the Petitioner has not 
sufficiently established that the Beneficiary would qualify as a personnel manager. 
Furthermore, the Petitioner also appears to indicate that the Beneficiary qualifies as a function manager 
noting that he is responsible for "managing [an] essential investment banking function." 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). 
The Petitioner has not sufficiently demonstrated that the Beneficiary would qualify as a function 
manager. First, the Petitioner did not adequately define the function, but only generically referred to 
CGM and DMA functions without providing a clear description of the nature of these asserted 
functions. Without a more definitive explanation of the Beneficiary's claimed function, it is difficult 
to understand how he manages it. Further, as discussed, the Petitioner does not detail or document the 
Beneficiary's claimed managerial tasks, such as the business development strategies he developed, 
overall business goals he set, new initiatives he launched, or internal controls he put in place. 
In addition, as noted, the Beneficiary's duty description includes several tasks that appear related to 
the direct provision of services for clients, such as him selling futures and "DMA solutions," 
generating leads, "generating revenue," "broadening the depth of coverage at his execution desk," 
"maintaining considerable client contact and liaising as an account manager" and "serving as the North 
America contact point" for global CGM and DMA business. However, other than vaguely indicating 
that the Beneficiary's oversees professional subordinates, which it has not properly established, it does 
not explain how the Beneficiary is primarily relieved from performing the duties of his claimed 
function. In fact, the Beneficiary's duty description, as we have noted, strongly indicates that he is 
primarily involved with the day-to-day operational aspects of performing his function. 
In addition, the Petitioner does not properly articulate how the Beneficiary acts at a senior level within 
his claimed function. In fact, the Petitioner only stated that the company "does not utilize 
organizational charts." Without further documentary evidence and explanation, it is not clear that the 
Beneficiary acts as the senior manager of his claimed function. For these reasons, the Petitioner has 
not sufficiently established that the Beneficiary would qualify as a function manager. 
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The Petitioner has not demonstrated that the Beneficiary would qualify as a manager in the United 
States. For this reason, we conclude that the Director properly denied the Petitioner's previous motion 
to reopen and motion to reconsider as it did not establish the Beneficiary's eligibility for the benefit 
sought. 
ORDER: The appeal is dismissed. 
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