dismissed EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 6596258 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV. 7, 2019 
PETITION: Form I-140, Immigrant Petition for Multinational Managers or Executives 
The Petitioner operates in the banking industry as a provider of IT services and solutions . It seeks to 
permanently employ the Beneficiary in the United States as a "Senior Manager (Delivery)" under the 
first preference immigrant classification for multinational executives or managers. See Immigration 
and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § l 153(b)(l)(C). 
The Director of the Nebraska Service Center denied the petition concluding that the Petitioner did not 
establish, as required , that the Beneficiary was employed abroad in a managerial capacity . The matter 
is now before us on appeal. 
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. 
The Form I-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. See 8 C.F.R. § 204.5(j)(3). 
II. EMPLOYMENT ABROAD IN A MANAGERIAL CAP A CITY 
The Petitioner claims that the Beneficiary was employed abroad as a senior consultant who supervised 
five professional employees . As the Petitioner does not claim that the Beneficiary was employed in 
an executive capacity, we will only discuss whether the position abroad fit the statutory and regulatory 
criteria for managerial capacity. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are required to 
primarily supervise and control the work of other supervisory, professional, or managerial employees. 
Section 101(a)(44)(A)(ii) of the Act. 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. § 214.2(l)(l)(ii)(B)(3). 
When examining the managerial capacity of a beneficiary, we examine a petitioner's description of 
the job duties. See 8 C.F.R. § 204.5(i)(5). Beyond the job duties, we review the totality of the record, 
including the employing entity'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. 
A. Procedural History 
In a supporting cover letter, the Petitioner provided an 8-tier pyramid chart depicting the "multiple 
layers of professional and management team members" that comprise its international organization. 
The Beneficiary's position as senior consultant is depicted at the layer that is third from the bottom, 
showing five layers - lead consultant, associate manager/associate architect, manager architect, senior 
manager/senior architect, and direct - above the Beneficiary's position, and two layers - associate 
consultant and engineer - below it. The Petitioner also provided a block organizational chart depicting 
the staffing hierarchy and reporting structure of the division in which the Beneficiary was employed. 
The chart shows four levels of management above the Beneficiary, with an executive vice president 
at the top of the reporting structure, followed by "Partner ERP," a senior vice president, and an 
assistant vice president ("A VP"), in descending order. The chart further shows that the latter position 
of A VP, which is at the bottom tier of the management reporting structure, supervised ten associates, 
including the Beneficiary as one of three senior consultants. The chart is accompanied by a 
corresponding description of the roles and responsibilities within the Beneficiary's team, 
distinguishing the AVP as the team's lead and stating that he "monitors the team daily activities and 
on time delivery for customer requirement." The description groups together the ten subordinate 
consultants, including the Beneficiary, describing their shared list of responsibilities and indicating 
that all ten are part of one team with no further hierarchy established among the ten subordinates. 
The Petitioner stated that the Beneficiary was initially hired as a consultant and was soon promoted to 
a senior consultant position, which he maintained from October 2005 until his 2009 transfer to work 
for the petitioning entity. The Petitioner stated that as senior consultant the Beneficiary performed the 
following job duties: developed applications and configured customer business processes; 
implemented various business modules; designed, developed, and upgraded enterprise applications 
using specific tools and interfaces; and prepared technical design documents, test and production 
support plans, test and use cases, and user manuals. The Petitioner provided a similar job description 
for the Beneficiary's initial U.S. position as "Consultant/Systems Analyst," which he assumed while 
in the H-lB nonimmigrant visa classification for specialty occupation workers. 
In a notice of intent to deny (NOID), the Director recited the Beneficiary's job description and found 
that the evidence submitted did not show that the Beneficiary supervised others or that he managed 
2 
daily operational tasks, but rather found that he likely performed primarily operational tasks. The 
Petitioner was allowed an opportunity to provide additional evidence showing that the Beneficiary 
assumed the role of a personnel or a function manager during his employment with the foreign entity. 
Namely, the Petitioner was asked to provide a list of the Beneficiary's specific job duties with assigned 
time increments for each job duty and to submit job descriptions, educational levels, and salaries for 
any subordinates the Beneficiary supervised. 
In response, the Petitioner provided a statement that included multiple job descriptions. One of the 
job descriptions stated that the Beneficiary "managed all aspects of the BAAN ERP Implementation 
projects unit" and was "a key member of the Business Leadership & Engagement team," which 
required him to oversee "a team of 5+ resources," "evangelize new and innovative ideas," and develop, 
test and deliver software solutions to customers. 
The Petitioner also provided a job duty breakdown showing that 20% of the Beneficiary's time was 
allocated to personnel management activities, including managing and distributing the workload 
among project team members, overseeing the team responsible for gathering requirements, and 
performing duties in the "People Management and Development" category, which included leading 
performance appraisals, finalizing personnel development plans, mentoring and motivating team 
members, and conducting technical interviews. In another section of the RFE response statement, the 
Petitioner listed, but did not assign time constraints, to other personnel management duties it claims 
were performed by the Beneficiary. Such duties include initiating meetings with team members, 
making hiring and firing recommendations, reviewing status reports, approving leave requests, 
reviewing and approving requests for reimbursements, recommending trainings based on evaluations 
of subordinates' skill sets, and conducting daily and weekly status meetings. 
The remainder of the job duty breakdown included operational tasks in one of three categories -
leadership and delivery management, delivery management and execution, and projecting work 
activity performance. Leadership and delivery management included developing project schedules 
and finalizing project approaches, estimating requirements for project delivery and setting targets in 
line with client expectations, "[p ]repar[ ing] environment for performing acceptance tests" and product 
deployment, conducting risk monitoring activities, meeting with management teams and client 
leadership, reviewing client feedback and test strategies and plans, reviewing and implementing 
contingency plans, managing "customer interactions" and approval on deliverables; managing and 
executing deliverables included developing test scenarios, cases, and procedures, tracking defect fixes, 
assisting testing teams by reviewing test scripts, scenarios, and data analysis; and projecting work 
activity performance included developing applications and configuring customers' business processes, 
implementing key business modules, designing and developing applications using various web-based 
tools, and preparing technical design documents, such as test and support plans and user manuals. 
In a separate job duty chart, the Petitioner categorized job duties based on how frequently the 
Beneficiary performed them - daily, weekly, monthly, quarterly, half yearly, annually, and "need 
based." The Petitioner indicated that the majority, i.e., 60%, of the Beneficiary's time was allocated 
to job duties that were performed on a daily or weekly basis. Duties that were performed daily 
comprised 40% of the Beneficiary's time and included making status calls to determine progress and 
gauge potential risks, reviewing project backlog with stakeholders, reviewing functional 
specifications, and updating the project plan based on completions. Duties that were performed on a 
3 
weekly basis comprised 20% of the Beneficiary's time and included meeting with management and 
quality departments as well as with clients to provide progress updates and meeting with the technical 
team to ensure that solutions are consistent with client goals. 
The Petitioner also provided a report on project initiation and two "techno-functional" documents 
showing that although the Beneficiary reviewed these documents, all three were subject to approval 
by the Beneficiary's direct superior. Lastly, the Petitioner provided copies of emails in which the 
Beneficiary provided status updates on various projects and made requests for certain items that were 
needed to further project progress. 
In the denial decision, the Director restated several of the Beneficiary's job duty breakdowns and 
found that the job descriptions submitted in response to the NOID were not consistent with those 
initially submitted in support of the petition. The Director also found that despite several managerial 
aspects that were incorporated into the Beneficiary's position abroad, the duties primarily performed 
were not managerial in nature. The Director also addressed the personnel management element, 
pointing to inconsistencies in the Petitioner's claim causing the Director to doubt the reliability of the 
supporting evidence. 
The Petitioner appeals the Director's decision, contending that the Beneficiary assumed a managerial 
position in which he supervised five professional subordinates. 
B. Analysis 
We find that the Petitioner has not provided sufficient evidence demonstrating that the Beneficiary 
was employed abroad as a personnel manager. By statute, eligibility for this classification requires 
that the duties of a position be "primarily" managerial in nature when claiming that a beneficiary's 
past or proposed employment is in a managerial capacity. Section 10l(A)(44)(A) of the Act. Here, 
the multiple job descriptions the Petitioner provided indicate that the Beneficiary did not allocate his 
time primarily to tasks of a managerial nature, nor is there evidence demonstrating that the Beneficiary 
primarily managed subordinate personnel. Despite the claim that the Beneficiary was a personnel 
manager, the job duty breakdowns discussed earlier indicate that less than a quarter of the 
Beneficiary's was spent actually managing others. It appears that the remainder of his time may have 
been spent providing and coordinating IT services, communicating with clients to address their 
business needs, and ensuring that the IT services are delivered in a timely manner. While the 
Beneficiary's position abroad involved some supervisory job duties, those duties were, at best, 
ancillary to the position and did not occupy the primary portion of his time. 
Further, despite claiming that the Beneficiary managed five professional employees, neither the 
pyramid chart depicting the foreign entity's management structure, nor the block organizational chart 
depicting the Beneficiary's team's reporting structure, served as evidence that the Beneficiary assumed 
the role of a personnel manager. As noted earlier, the pyramid chart shows five layers of management 
above the Beneficiary's position and lists associate consultants and engineers as the only two layers 
below that of the senior consultants. Although the information about the chart states that "greater 
levels of managerial responsibility" correspond to each level of promotion, it did not specifically 
designate the senior consultant tier as a management tier and therefore does not show the Beneficiary's 
former position within the foreign entity as being at a managerial level. Likewise, the organizational 
4 
chart that specifically depicts the Beneficiary and the team he was part of in his former position shows 
two senior consultants aside from the Beneficiary and also lacks evidence that the Beneficiary had 
subordinates reporting to him. Rather, the chart indicates that the A VP who managed the Beneficiary 
had ten associates, among them the Beneficiary; the chart does not indicate that the Beneficiary had 
subordinates of his own. 
Further, we note that the block organizational chart is color coded, highlighting the four management 
tiers in one color, thereby distinguishing the managers from the remainder of the employees in the 
Beneficiary's team. 1 If the Beneficiary managed five of the consultants in his team as the Petitioner 
claims, it is unclear why the chart did not depict such a hierarchy or somehow highlight this purported 
reporting structure. To the contrary, the chart shows all ten associates - seven consultants and three 
senior consultants, including the Beneficiary - as being part of one team and does not distinguish any 
individual senior consultant as being supervisory with respect to the junior level consultants. This 
information is consistent with the previously discussed chart listing the roles and responsibilities of 
the A VP separately from those of the subordinate team members, whose duties were not listed 
individual, but rather were grouped together and thus did not distinguish any single group member as 
being supervisory with respect to any of the others. Contrary to the Petitioner's claim, the block 
organizational chart and accompanying description of roles and responsibilities consistently placed 
the Beneficiary as a member of a team and do not indicate that the Beneficiary held a managerial 
position within that team. If USCIS finds reason to believe that an assertion stated in the petition is 
not true, USCIS may reject that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § 1154(b); 
Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. 
Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). As discussed herein, the Petitioner has not provided 
evidence demonstrating that the Beneficiary's position was managerial with respect to any of the 
consultants on his team. 
Lastly, despite the Petitioner's contention that the Director applied an incorrect standard of proof: we 
disagree we find that the Petitioner has not submitted sufficient evidence to satisfy the preponderance 
of the evidence standard as claimed. Although we acknowledge that the Beneficiary's job descriptions 
included elements of personnel management, including authority over hiring and firing and granting 
leave requests, leading performance appraisals, and finalizing personnel development plans, the 
Petitioner did not offer evidence showing that the Beneficiary performed any of these listed tasks. As 
stated earlier, the Petitioner must support its assertions with relevant, probative, and credible 
evidence. See id. at 376. 
1 Although the block containing the Beneficiary's name and position title is green while the other nine associates' blocks 
are blue, this distinction appears to have been made for the purpose of highlighting this petition's beneficiary and not for 
the purpose of distinguishing him as management with respect to other associates. 
5 
In light of the deficiencies described above, the Petitioner has not established that the Beneficiary was 
employed abroad in a managerial capacity. 
ORDER: The appeal is dismissed. 
6