dismissed EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-, INC . 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 20, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , which provides consulting and solutions to the telecommunications industry, seeks to 
permanently employ the Beneficiary as a director of information technology (IT) 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. § l 153(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, concluding that the record did not 
establish, as required, that: (1) the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity; and (2) the Beneficiary has been employed abroad in a managerial 
or executive capacity. 
On appeal , the Petitioner submits additional evidence and asserts that the Director erred by giving 
insufficient weight to "relevant, credible , and probative evidence." 
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. 
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. § 204.5G)(3). 
Matter of S-, Inc. 
II. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary has been employed abroad, 
and will be employed in the United States, in a managerial or executive capacity. The Petitioner claims 
that the Beneficiary will be and has been employed as a function manager. Therefore, we restrict our 
analysis to whether the Beneficiary will be employed in a managerial capacity. Because this finding 
is dispositive, we will reserve the issue of the Beneficiary's prior employment abroad. 
"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). 
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 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must 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. 
When examining the claimed managerial capacity of a given beneficiary, we will look to 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 or executive capacity. See 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 and its staffing levels. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10l(a)(44)(A)(i) and (ii) of the Act. The term "function manager" applies 
generally when a beneficiary's managerial capacity primarily derives not from supervising or 
controlling a subordinate staff, but instead from managing an "essential function" within the 
organization. See section 10l(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: 
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Matter of S-, Inc. 
(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 denying the petition, the 
Director found that the Petitioner had not satisfied the listed conditions. 
We agree with the Director's conclusion. Our decision is based on a finding that the evidence and 
information provided by the Petitioner is not sufficient to meet the Petitioner's burden of proof 
In this instance, the Petitioner asserts that the Beneficiary has been, and will continue to be, a function 
manager, but the Petitioner has not consistently identified the function that the Beneficiary would 
manage. The Petitioner initially stated that the Beneficiary, as "Director-IT, [holds] a management 
position that reports directly to the Director-IT and Managed Services." The Petitioner has also, at 
various times, referred to the Beneficiary as "IT Director-Americas" and "Functional Manager [ of] 
IT and Bureau Operations." 
On appeal, the Petitioner refers to "[t]he Managed Services function," "Internal IT function," and "the 
planning and maintenance of our company's entire IT infrastructure." The Petitioner states in the 
appellate brief that the Beneficiary "will effectively manage [the Petitioner's] IT and Bureau 
Operations, a major component of the Petitioner's business." The Petitioner has also referred to 
managing the budget for the IT and Bureau Operations. The varying terminology does not resolve the 
lack of clarity that contributed to the denial of the petition. The assertion that the Beneficiary will be 
responsible for various elements of IT does not present an adequate picture of what the essential 
function is, particularly because the Petitioner's business largely consists of providing IT solutions to 
the telecommunications industry. 
The appeal includes "[i]nformation from company website regarding the function the Beneficiary 
Manages." This information refers to "Telecom managed services" and "Revenue Operations 
Centers," but it remains unclear whether the Beneficiary has full authority over those services or, 
rather, specific elements thereof The existence of a "Director-IT and Managed Services" who 
outranks the Beneficiary appears to preclude a finding that IT and managed services, as a whole, 
comprise the function that the Beneficiary manages at a senior level. The Petitioner has not provided 
enough information to permit a meaningful comparison between the responsibilities of the Beneficiary 
and those of his immediate superior. 
The Petitioner stated that the Beneficiary would divide his time as follows: 
• Manage the service perspective and in region interface for the IT team; ( 40% 
of the time) 
o Set and manage the budget for IT and Bureau operations. 
o Serve as a liaison with Bureau customers, vendors and support functions in 
order to run the day-to-day IT and Bureau services. 
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Matter of S-, Inc. 
o Prepare progress reports for the Management team. 
o Set Key Result Areas (KRA's) and perform annual performance reviews for 
team members. 
o Set roadmaps for the Bureau and IT infrastructure. 
o Identify training needs. 
o Update ITSM systems. 
o Collaborate with IT administrators and the executive level Proprietary Managed 
Services Bureau operations support. 
• Plan the capacity for the IT infrastructure; (30% of the time) 
o Direct the patches for the application and maintenance and perform user access 
controls to the MS bureau service. 
o Oversee user access control to the MS Bureau services. 
o Prepare documents and maintain standards for auditing purposes. 
o Produce technical design and related documentation for ROC® Revenue 
Assistant, ROC® PS. 
o Monitor and maintain performance levels for the Bureau infrastructure for 
ROC® FM, ROC® PS and ROC® RA 7. 
o Maintain data security standards and achieve recertification for product bureau 
services. 
o Engage with customers to resolve MS Bureau operational issues. 
o Engage in presale activities around hosting of CAPMAN and ROC® insights. 
• Diagnose and troubleshoot incidents related to IT infrastructure; (30% of the 
time) 
o Oversee the diagnosis and troubleshooting related to IT infrastructure issues. 
o Oversee the routine and maintenance and manage the backup and restoration of 
the live infrastructures. 
o Perform routine and preventative maintenance. 
o Manage backup and restoration on live infrastructure. 
o Configure and bring up new infrastructure based on project activities. 
o Manage user accounts on the IT systems. 
o Implement and maintain IT security standards. 
Asked for more information, the Petitioner asserted that "the Beneficiary's duties and responsibilities 
are primarily managerial with little or no hands on work." The Petitioner stated that the Beneficiary 
"will continue to develop security strategies compliant to the ISO27001 and SSAE16 standards for the 
managed services environment." The Petitioner resubmitted the above breakdown of duties, and a 
separate, second list of duties: 
• Set, control IT budget and IT procurements for the Americas region (North and 
South America & Canada). 
• Oversee smooth running of IT and hosted Bureau services in Americas region. 
• Handle escalations for hosted bureau services for IT function and drive problem to 
resolution. 
• Update executive management on IT operations & issues for the region from time 
to time. 
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Matter of S-, Inc. 
• Help sales & pre-sales team with technical inputs and cost estimation for project 
bids in the region. 
• Plan and execute hardware and software upgrades from IT perspective to enable 
new technological capabilities and secure corporate as well as customer data. 
• Liaise with vendor support, internal network, systems and database admin teams to 
get [the Petitioner's] proprietary application issues resolved to customer 
satisfaction. 
• Capacity monitoring for Bureau hosted platform and upgrade recommendations. 
• Improve customer satisfaction for both internal and external customers for IT 
support function. 
• Plan and co-ordinate external audits across IT and managed services bureau 
function for Americas region. 
• Attend and contribute to weekly IT meetings across regions. 
• Build new and manage existing vendor relationships. 
• Enable [ the Petitioner] to leverage IT infrastructure for its internal corporate 
functions and run its proprietary hosed Bureau services for external customers in a 
secure and efficient manner for Americas region. 
• The budget allocation for both IT infrastructure and hosted Bureau operations for 
Americas region is approximately $500,000. 
The two lists of duties overlap somewhat, but there are several differences between what are supposed 
to be two descriptions of the same position. Several elements in the above lists appear to refer to 
operational tasks, such as "[p ]erform[ing] routine and preventative maintenance," "execut[ing] 
hardware and software upgrades," and "perform[ing] user access controls." Others describe vague 
responsibilities rather than the actual tasks the Beneficiary would perform to fulfill those 
responsibilities. Examples include "[ m ]anag[ing] user accounts," "[ e ]nabl[ing the Petitioner] to 
leverage IT infrastructure," and "[i]mprov[ing] customer satisfaction." 
Because the Beneficiary's job duties include several apparently non-managerial responsibilities, it is 
necessary to examine the staffing available to relieve the Beneficiary from primarily having to perform 
non-qualifying tasks. An organizational chart submitted with the initial filing of the petition showed 
the following hierarchy: 
Director - IT and Managed Services 
UK Office US Office India Office 
I I I 
Network Administrator IT Director - Americas Manager IT Infra 
I 
Windows Administrator 
[ the Beneficiary] 
I 
Team Size 4 
I 
PC Specialist Manager Endpoint 
Team Size 4 
I 
Lead Security 
Team Size 2 
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Matter of S-, Inc. 
The Director requested more evidence to establish that the organization employed the claimed 
subordinates, and to show their respective roles and the Beneficiary's authority over them. In 
response, the Petitioner submitted a significantly revised organizational chart: 
Director - IT and Managed Services 
UK Office US Office India Office 
I I I 
Manager-IT IT Director - Americas Director- IT (formerly 
I [the Beneficiary] identified as Manager IT Infra) 
Senior Associate - IT 
Associate Director - IT 2 Managers - IT 
(formerly identified as Manager Endpoint) I I 1 Lead-IT 
1 Lead-IT 
The revised chart did not show the previously claimed PC specialist or any other U.S. employee 
directly subordinate to the Beneficiary. The revised chart also did not clarify which of the lower-level 
team members in India were on both charts. Furthermore, the lowest-level employees in India are 
called "managers" and "leads," implying the presence of subordinates, but the Petitioner provided no 
further information or evidence in this regard. 
As noted above, the charts show that the Beneficiary reports to a "Director-IT and Managed 
Services," who, it would appear, manages IT and managed services at a more senior level than the 
Beneficiary does. The Petitioner has not resolved this central issue. 
A separate table indicated that seven U.S. vendors would provide "[h]ardware and software support." 
The Petitioner stated that the employees in India and the U.K. (and, previously, the PC specialist in 
the United States) perform various permutations of the following tasks: 
• Fix end user IT issues 
• Monitor IT infrastructure performance, capacity, and security 
• Setup laptops, server, storage, software and connectivity for projects as per project 
requirements 
• Monitor and secure IT infrastructure from external attacks 
• Patch and firmware update/upgrade roll outs 
• Systems and network administration 
The Petitioner did not show that the workers in the U.K. and India relieve the Beneficiary from 
performing the operational tasks listed in the Beneficiary's own job descriptions. 
The Petitioner submitted copies of payroll records for five IT infrastructure workers in India - two 
managers and three leads, as named on the revised organizational chart. None of these names or 
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Matter of S-, Inc. 
position titles appeared on the initial organizational chart filed with the petition; two of the employees 
were hired after the petition's January 2018 filing date. 
In the denial notice, the Director found that the Petitioner had not established that the Beneficiary 
qualifies as a personnel manager, because the Petitioner did not show the Beneficiary's authority to 
make or recommend personnel decisions including hiring and firing, and because the Petitioner did 
not provide enough information about the Beneficiary's claimed subordinates. 
On appeal, the Petitioner states that the Beneficiary's "control over both IT teams is shared with the 
IT directors, whom he advises on the management of their reports." The record, however, does not 
corroborate this assertion. Furthermore, the personnel structure discussed on appeal is significantly 
different from the version described at the time of filing. Because the Petitioner has not established 
that a qualifying personnel structure existed at the time of filing, we need not address the substantially 
revised structure depicted in the Petitioner's later submissions. See 8 C.F.R. § 103.2(b)(l), which 
requires every petitioner to meet all eligibility requirements at the time of filing and continuing through 
the adjudication of the petition. 
As examples of the Beneficiary's decision-making authority, the Petitioner submitted copies of email 
messages in which the Beneficiary approved purchase orders, inquired about a billing discrepancy, 
and confirmed details about a project. These messages show a certain degree of responsibility, but 
only relating to a limited range of issues compared to the broader authority claimed above. They do 
not demonstrate a senior level of authority, or establish the nature or degree of the Beneficiary's 
indirect control over foreign workers who report locally to managers of their own. 
The Beneficiary is named as the preparer of several internal procedural documents or revisions thereof 
The record does not reveal the nature of the preparatory work. For example, the Petitioner does not 
explain whether the Beneficiary personally drafted the policies described, or simply prepared written 
guides to reflect policies handed down from higher levels of authority. Some of these documents show 
multiple revisions during a single day, indicating that the revisions were probably minor. 
Because of deficiencies and occasional discrepancies in the record, we find that the Petitioner has not 
met its burden of proof to establish, by a preponderance of the evidence, that the Beneficiary has been, 
and will remain, a function manager. We reserve the issue of the Beneficiary's previous employment 
abroad, but we note that this employment appears to have been similar to his later U.S. employment. 
III. 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 of S-, Inc., ID# 5509711 (AAO Sept. 20, 2019) 
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