dismissed EB-1C Case: Gaming Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 7375461 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 7, 2020 
Form I-140C, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a gaming machine manufacturer and provider, seeks to permanently employ the 
Beneficiary as a technical support manager 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 record did not 
establish, as required, that the Beneficiary was employed in a managerial or executive capacity abroad 
prior to his entry into the United States as a nonimmigrant. 1 
On appeal , the Petitioner asserts that the Beneficiary acted as a function manager in his former capacity 
abroad overseeing the foreign employer's technical support function. The Petitioner contends that the 
Beneficiary was relieved from primarily performing the non-qualifying duties of the function by 
technicians he trained and oversaw. 
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 
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. 
1 In the denial decision the Director did not explicitly state that the Petitioner had not established that the Beneficiary was 
employed in a managerial or executive capacity abroad, but stated that the Petitioner "has not established eligibility for the 
benefit sought." This conclusion was after the Director listed the Beneficiary 's foreign position title, "technica l engineer," 
and including one vers ion of his foreign duties in the decision . However , the Director proceeded to conclude that the 
Beneficiary "will [emphasis added] not primarily perform the duties of the function rather than manage them." On appeal, 
the Petitioner submits an appeal brief and an additional foreign employer letter specific to the Beneficiary 's foreign 
employment. As such, the record indicates that the Beneficiary's asserted former employment abroad was the only issued 
addressed by the Director in the denial decision; and therefore , the only issue we will analyze here. 
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. FOREIGN EMPLOYMENT IN A MANAGERIAL CAP A CITY 
The first issue we will address is whether the Petitioner has established that the Beneficiary acted in a 
managerial or executive capacity abroad. The Petitioner does not claim that the Beneficiary was 
employed in an executive capacity abroad. Therefore, we will restrict our analysis to whether the 
Beneficiary was 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. 
In this matter, the Petitioner only asserts that the Beneficiary qualified as a function manager abroad 
and not as a personnel manager overseeing subordinate supervisors or professionals. 2 The term 
"function manager" applies generally when a beneficiary did not supervise or control the work of 
subordinate staff but instead was primarily responsible for managing an "essential function" within 
the organization. See section 10l(a)(44)(A)(ii) of the Act. If a petitioner claims that a beneficiary 
managed an essential function, it must clearly describe the duties performed in managing the essential 
function. In addition, the petitioner must demonstrate that "(l) the function was a clearly defined 
activity; (2) the function was 'essential,' i.e., core to the organization; (3) the beneficiary primarily 
managed, as opposed to performed, the function; (4) the beneficiary acted at a senior level within the 
organizational hierarchy or with respect to the function managed; and ( 5) the beneficiary exercised 
discretion over the function's day-to-day operations." Matter of G- Inc., Adopted Decision 2017-05 
(AAO Nov. 8, 2017). 
The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement that clearly 
describes the duties performed by the Beneficiary abroad. Beyond the required description of the 
foreign job duties, we review the totality of the evidence when examining the claimed managerial 
capacity of a beneficiary abroad, including the foreign employer's organizational structure, the duties 
of a beneficiary's subordinate employees abroad, the presence of other employees to relieve a 
beneficiary from performing operational duties, the nature of the foreign business, and any other 
factors that will contribute to understanding a beneficiary's actual duties and role in a business abroad. 
2 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 have primarily supervised and controlled the work 
of other supervisory, professional, or managerial employees. 
2 
Accordingly, our analysis of this issue will focus on the Beneficiary's duties as well as the foreign 
employer's business activities and staffing levels. 
A. Duties 
The Petitioner must show that the Beneficiary performed certain high-level responsibilities abroad 
consistent with the statutory definitions of managerial capacity. Champion World, Inc. v. INS, 940 
F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the Petitioner must prove that the 
Beneficiary was primarily engaged in managerial duties, as opposed to ordinary operational activities 
alongside the foreign employer'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 its company "is a worldwide leading developer and supplier of luxury 
electronic table gaming products," noting that it provides "gaming solutions and technical support in 
more than 100 jurisdictions." The Petitioner indicated that the Beneficiary had been employed with 
the foreign employer since 2003, most recently in the managerial position of'Technical Engineer (aka 
"Senior Service Engineer")" from 2006 to 2010 prior to his entry into the United States as an L-1 A 
nonimmigrant. In a support letter provided with the petition, the Petitioner explained that the 
Beneficiary "managed the technical support and training functions for [the foreign employer]." It also 
listed the following duties for the Beneficiary in this former role abroad: 
• Responsibility for the training of technicians in the [ foreign employer and its affiliates], 
and related technical support function (50%) 
• Responsibility for the training of casino-employed technicians at client sites, and 
related technical support function (15%) 
• Responsibility for the testing of products prior to shipment to customers, and related 
technical support function (15%) 
• Responsibility for the testing and validating of gaming machines and software, and 
related technical support function (10%) 
• Attending exhibitions to represent [the foreign employer] gaming products (10%) 
In addition, the Petitioner stated that the Beneficiary "was the only trainer for the company globally," 
"the go-to resource for any technical questions," and that he was "responsible for training and 
supervising the technical performance of approximately fifty (50) service technicians." The Petitioner 
farther indicated that this was an "essential function of our business," noting that it "goes to the heart 
of our business and [is a] necessary, core function." 
The Petitioner also submitted the Beneficiary's foreign employment contract dated in February 2008. 
This contract listed the Beneficiary's title as "Service Engineer" and including the following duties: 
Duties: technical support to end users (phone and internet), technical support/assistance in 
distributor problems, installation of end-buyer devices, performance of end-user service 
procedures, generating travel forms, generating business forms, other necessary work in 
the above areas as instructed by supervisor or Director General. 
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The employment agreement further reflected that the Beneficiary's "performance [ would be] assessed 
by the immediate supervisor and the Director General." 
In a later request for evidence (RFE), the Director stated that the Beneficiary's duty description was 
"vague and [did] not explain in exact detail the beneficiary's specific duties" and requested and 
explanation of his specific daily tasks and the time he spent on each. The Director further asked that 
the Petitioner clarify who performed the administrative tasks necessary to provide goods and services 
and explain the Beneficiary's managerial duties specific to goal-setting, policy-making, and 
discretionary decision-making. 
In response, the Petitioner stated that the Beneficiary devoted 50% of his time to training foreign 
employee technicians and 15% of his time to "training casino employed technicians." It indicated that 
that the Beneficiary therefore spent 65% of his time "managing an essential function of the company 
related to technical support." It further explained that the Beneficiary spent 30% of his time on 
"managing technical support for customers, which was performed through the technicians who he 
trained." The Petitioner noted that these technicians performed the on-site technical support, "except 
in unusual or special cases." 
On appeal, a letter from the foreign employer largely reiterates these assertions, explaining that the 
Beneficiary trained each new technician and that this took "three to six months due to the complexity 
of the casino gaming equipment." It also noted that this training "consisted of one-on-one instruction 
at headquarters and during service calls." Again, it stated that the Beneficiary would train and teach 
"new casino technicians how to operate the equipment, solve errors, and report problems" and ensure 
"the technical functionality of equipment before installation, including tests for randomness, safety, 
bill validity, slot accounting system, and pay tables." The Petitioner further indicated that "[the 
Beneficiary] was responsible for developing our company's service standards and creating training 
programs for technicians to service our products" and that "our technicians relieved [the Beneficiary] 
from primarily performing technical support." 
The Petitioner has not submitted sufficient evidence to establish that the Beneficiary primarily 
performed managerial duties abroad. The Beneficiary's duty description indicates that he was 
primarily involved in several different non-qualifying operational tasks, such as providing training to 
foreign employees and clients at casino locations; ensuring the technical functionality of equipment 
before installation (including testing randomness, safety, bill validity and other similar technical 
aspects); confirming that equipment software and hardware met requirements before installation; and 
attending exhibitions. However, the Petitioner contends that the Beneficiary primarily spent his time 
on managerial duties abroad; namely 65% on training foreign employer technicians and client 
employees based at casinos. First, it is noteworthy that 15% of the Beneficiary's time was devoted to 
providing services directly to clients by providing training to casino employees. Therefore, if we 
accept the Petitioner's contentions, this indicates that the Beneficiary did not spend a majority of his 
time managing his asserted function. 
Further, the Petitioner stated that the Beneficiary "was the only trainer for the company globally" and 
"the go-to resource for any technical questions," suggesting his constant involvement in the non­
qualifying operational aspects of the business. In fact, the Director requested in the RFE that the 
Petitioner specifically explain the Beneficiary's managerial duties, such as those related to goal-
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setting, policy-making, and discretionary decision making; however it provided few examples of these 
managerial level tasks and it did not sufficiently document that he was primarily engaged in them as 
claimed. Likewise, the Petitioner provided no evidence of the Beneficiary creating service standards 
and training programs for technicians as claimed. 
The Petitioner has also not submitted sufficient supporting documentation to substantiate that the 
Beneficiary was primarily relieved from performing the non-qualifying operational duties that 
predominate his duty descriptions. In contrast, the Petitioner submits the Beneficiary's foreign 
employment agreement which reflects only non-qualifying operational tasks, such as him providing 
"technical support to end users," "technical support/assistance in distributor problems," "installation 
of end-buyer devices," and "performance of end-user service procedures," as well as him "generating 
travel forms" and "business forms." It is notable that the employment agreement is dated in 2008 and 
that the Petitioner contends that the Beneficiary was employed in his managerial role abroad from 
2006 to 2010. However, the Beneficiary's employment agreement does not reflect his employment in 
a managerial capacity, but only his performance of non-qualifying operational-level duties. At no 
point in the Beneficiary's employment agreement is there any indication that the he was primarily 
engaged in managerial tasks abroad overseeing a function at a senior level, or that he was relieved of 
his stated tasks by subordinate technicians. 
In addition, the Petitioner provides extensive evidence demonstrating the Beneficiary's involvement 
in day-to-day technical matters at client locations in his current claimed higher level role in the United 
States. These emails and support logs appear to indicate that the Beneficiary currently acts as "Level 
II" secondary support on all technical problems within the company, suggesting his substantial 
involvement non-qualifying operational tasks. This leaves substantial uncertainty as to whether the 
Beneficiary was primarily relieved of these tasks abroad in a lesser role prior to his promotion. There 
is no supporting evidence to support the Petitioner's contention on appeal that the Beneficiary was 
primarily relieved abroad from performing non-qualifying operational duties by foreign employer 
technicians or that he trained these technicians. Indeed, the totality of the evidence indicates that the 
Beneficiary was directly involved in providing technical support and training services; namely, that 
he was primarily performing his asserted function rather than managing it. 
Whether the Beneficiary was a managerial employee turns on whether the Petitioner has sustained its 
burden of proving that their duties were "primarily" managerial. See sections 10l(a)(44)(A) of the 
Act. Here, the Petitioner did not sufficiently document what proportion of the Beneficiary's duties 
were managerial functions abroad and what proportion were non-qualifying. The Beneficiary's 
foreign duty descriptions and employment agreement include few managerial tasks, but substantial 
administrative or operational tasks. However, the Petitioner does not credibly quantify the time the 
Beneficiary spent on these different duties. For this reason, we cannot determine whether the 
Beneficiary primarily performed the duties of a manager abroad. See IKEA US, Inc. v. US. Dept. of 
Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
By statute, eligibility for this classification requires that the duties of a foreign position be "primarily" 
managerial in nature. Sections 10l(A)(44)(A) of the Act. Even though the Beneficiary may have 
exercised discretion over some of the foreign employer's day-to-day operations and possess the 
requisite level of authority with respect to discretionary decision-making, the position descriptions 
alone are insufficient to establish that his foreign duties were primarily managerial in nature. 
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B. Staffing and Operations 
If staffing levels are used as a factor in determining whether an individual acted in a managerial 
capacity, the reasonable needs of the organization are taken into account in light of the overall purpose 
and stage of development of the organization. See section 101 (a)( 44 )( C) of the Act. 
As noted, the Petitioner asserts that the Beneficiary acted as a function manager in his former capacity 
abroad as a technical engineer/senior service engineer overseeing the "technical support and training 
function." As discussed, the Petitioner also stated that the Beneficiary was "responsible for training 
and supervising the technical performance of approximately fifty (50) service technicians." However, 
the Petitioner also submitted an organizational chart listing the Beneficiary as a "senior service 
engineer" reporting to a service manager overseen by a vice president of sales. In addition, the chart 
reflected that a customer support engineer, five service technicians, and a warehouse manager also 
reported to the service manager. This foreign organizational showed that the Beneficiary acted at a 
level equal to these colleagues, also reporting to the service manager. There was no indication in this 
chart that the Beneficiary oversaw an entire technical service and training function or 50 service 
technicians as claimed. 
Now, on appeal, the Petitioner lists five technicians it states relieved the Beneficiary from performing 
technical support abroad. However, none of these technicians were included in the previous foreign 
employer organizational chart nor were they shown to report to the Beneficiary. In addition, the 
Petitioner provided a 2008 employment agreement stating that the Beneficiary would be instructed, 
and that his performance would assessed by an "immediate supervisor and the Director General." This 
is inconsistent with the provided organizational chart indicating that he reported to a service manager 
overseen by a vice president of sales. These discrepancies leave substantial question as to whether the 
Beneficiary acted at a senior level within the organizational hierarchy with respect to his claimed 
function and whether he exercised discretion over his function's day-to-day operations. Matter of G­
Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). The Petitioner must resolve discrepancies in 
the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). 
As we previously noted, the Petitioner submitted no evidence to demonstrate that the Beneficiary acted 
at the head of a function abroad or that he primarily delegated duties to technicians. For instance, it 
submitted no supporting documentation to substantiate the Beneficiary setting goals or policies, or 
making discretionary decisions with respect to his asserted "technical support and training function." 
In fact, as noted, the record includes substantial evidence specific to the Beneficiary's later 
employment in the United States and this evidence indicates that he regularly performs Level II 
technical support duties, including sending solutions to equipment problems to service technicians and 
running tests and diagnostics on machines. We acknowledge that this evidence is not specific to the 
Beneficiary's former role abroad. However, in light of the lack of evidence of the Beneficiary's 
management of a defined function abroad, this documentation related to his employment in the United 
States suggests that he likely performed similar duties abroad. Indeed, the Beneficiary was acting in 
a lower level position reporting to a service manager during his foreign employment. In sum, the 
evidence indicates that it is more likely than not that the Beneficiary was primarily engaged in 
performing the duties of the service function, rather than managing it; including providing training to 
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foreign employees and clients at casino locations, ensuring the technical functionality of equipment, 
software, and hardware requirements before installation, attending exhibitions, amongst other non­
qualifying operational tasks. 
To illustrate, the Petitioner compared the current matter to our adopted decision addressing function 
managers Matter of Z-A-, Inc.; however, we do not concur with its assertion that the facts of that case 
are similar. See Matter of Z-A-, Inc., Adopted Decision at 2016-02. For instance, the beneficiary in 
Matter ofZ-A-, Inc. was the vice president and chief operating officer and he acted at the highest level 
of management within his organization. Here, as we have discussed, the evidence indicates that the 
Beneficiary acted in a position within the greater service function reporting to a service manager 
overseen by a vice president of sales. This evidence indicates that the Beneficiary did not act at a 
senior level within the organization. 
In addition, the beneficiary in Matter of Z-A-, Inc. was supported by several operational level 
employees abroad who relieved him from performing non-qualifying duties. Here, the Petitioner has 
not demonstrated that the Beneficiary was substantially relieved from performing his stated 
operational level tasks by subordinates or other staff within the foreign employer. Further, the 
beneficiary in Matter of Z-A-, Inc. performed no apparent non-qualifying tasks, but was focused on 
general policy, strategies, and goals of the organization, and on monitoring sales activities. While in 
this case, the evidence predominately indicates the Beneficiary's day-to-day involvement in technical 
support and training matters. In short, the petitioner in Matter ofZ-A-, Inc. credibly demonstrated that 
the beneficiary was primarily tasked with managing a function rather than performing its duties. 
However, here, the Petitioner has not convincingly demonstrated that the facts of the current matter 
are comparable to Matter of Z-A-, Inc., or that the Beneficiary acted as a function manager in his 
former capacity abroad. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary acted in a managerial 
capacity in his former capacity abroad. 
ORDER: The appeal is dismissed. 
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