dismissed EB-1C Case: Information Technology

MATTER OF A- LLP 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. l, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FORALIEN WORKER 
The Petitioner, an information technology (IT) consulting firm, seeks to permanently employ the 
Beneficiary as an associate manager under the first preference immigrant classification for 
multinational executives or managers. Immigration ::ind 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 Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary has been employed abroad in a managerial or executive 
capacity. 
On appeal, the Petitioner asserts that the Di,:ector erred by conflating two separate positions and by 
giving too much weight to administrative designations on payroll records. 
Upon de nova review, we will dismiss the appeal. · 
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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 frorn 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 
bee~ doing business.for at.least one year. See 8 C.F.R. * 204.50)(3). 
Matter of A- LLP 
II. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE 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). 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary performed certain high-level responsibilities. Champhm World. Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, 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 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. 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." Section 10l(a)(44)(A)(iv) of the Act; 8 C.F.R. 
§ 204.5(i)(4)(i). 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(i)(2). 
· The-term "function manager" applies generally when a beneficiary's managerial capacity derives not 
from supervising or controlling a subordinate staft~ but instead from primarily managing an 
"essential function" within the organization. See section 101 ( a)( 44)(A)(ii) of the Act. 
The Director found that the Petitioner did not establish that the Beneficiary has been employed 
abroad in a managerial or executive capacity. The Petitioner does not claim that the Beneficiary has 
been employed in an executive capacity. Similarly, although the Petitioner initially stated that the 
Beneficiary "managed an essential function within [the foreign company]," the Petitioner states on 
appeal that "no assertion was m~de ... that [the Beneficiary] was a functional manager." Therefore, 
we wiB limit consideration to the claim that the Beneficiary was a personnel manager abroad. . l . 
When examining the claimed managerial capa~ity of a given beneficiary, \Ye 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 a11d indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 204.5(i)(5). Beyond the required description of the 
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-Matter of A- LLP 
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. 
A. One Year Requirement 
If a given beneficiary is already working in the United States for the petitioner or a related entity at 
the time of filing, then, to qualify for the classification sought, tb_at beneficiary must have worked for 
a qualifying entity abroad for one year during the three years preceding his or her entry as a 
nonimmigrant. See. 8 C.F.R. § 20f5(j)(3)(i)(B). · 
The Beneficiary has worked for the Petitioner in the United States since July 2014. Therefore, the 
Petitioner must show that a qualifying entity employed the Beneficiary in a managerial or executive 
capacity abroad for at least one year between July 2011 and July 2014. The Petitioner indicated that 
the Beneficiary was a development lead -from August 2011 to August 2013, and an associate 
_manager from September 2013 to July 2014. 
Because the Beneficiary held the associate manager position for less than a year, it cannot fulfill the 
one-year requirement by itself. We must also consider the Beneficiary's earlier employment as a 
development lead, whether or not the associate manager position was truly managerial. For this 
reason, the Director's decision focused on the position that the Seneficiary held from August 2011 to 
Augu_st 2013. 
B. Duties 
The Petitioner stated that the Beneficiary had "full discretionary authority over planning, staffing, 
execution of management, oversight, and final approval of all work product," plus the "annual 
. budget." The Petitioner also asserted that the Beneficiary "was in continuing communication with, 
and worked in direct coordination and consultation with," two senior managers. 
The Director asked for more informatio~ relating to the Beneficiary's 2011-2013 employment, 
because the Petitioner did not initially distinguish between the positions that the Beneficiary held 
before and after his 2013 promotion. 
In response, the Petitioner submitted a one-and-a-half page list of the Beneficiary's claimed 
responsibilities as a development lead, including the following examples: 
• Engage in account level planning . · .. 
• Define unit level goals and objectives ... 
• Coordinate with client ... 
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Matter of A- LLP 
• Define individual goals for team members 
• Define te;im targets, work schedules, and team structures 
• Monitor progress ... 
• Initiate and lead efforts to develop imiovative solutions for unique and/or complex 
business challenges 
• Conduct interviews, hire, and train new technical support/IT staff 
• Review and approve all work produced by the T earn 
The Petitioner also submitted copies of foreign tax and payroll documents, which consistently stated 
the Beneficiary's title as "team lead" rather than "development lead" before his 2013 promotion. 
That promotion included a 17% increase. in the Beneficiary's base salary. 
The Director denied the petition, noting the "team lead" title on the foreign payroll documents. 
Documents in the record show that a team lead has some leadership authority but also significant 
operational duties, such as, "develop[ing] and design[ing] code." The Director also found that one 
need not be a manager to work in coordination and consultation with high-level officials. 
Regarding the job descriptions submitted, the Director observed that the job descriptions for 
"development lead" and "associate manager" are nearly identical, except for the amount of time 
devoted to c,ertain responsibilities. 
The Director concluded that, according to the evidence that actually dates from 2013 and earlier, the 
Beneficiary was employed abroad .as a team lead rather than as a development lead. 
On appeal, the Petitioner asserts that the Director "should have relied upon the more specific and 
relevant information regarding [the Beneficiary's] professional managerial duties and 
responsibilities" instead of tax and payroll do.cuments that "were not submitted as evidence of his 
position." The Petitioner does not satisfactorily explain why the payroll documents consistently 
called the Beneficiary a :'team lead" rather than a "development lead." 
Instead, counsel for the Petitioner asserts instead that the company "has a very expansive Human 
Resources operation" which, for purposes of e1liciency, relies on ''generic internal designation[s]." 
Asse1iions of counsel do not constitute evidence. Matter (~l Obaigbena, 19 I&N Dec. 533, 534, n.2 
(BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). Counsel's 
statements must be substantiated in the record with independent evidence, which may include affidavits 
and declarations. In this instance, the Petitioner has not submitted any evidence from the foreign 
entitfs,human resources department to confirm that the pay receipts do not necessarily reflect an 
employee's actual title. · 
Significantly, elsewhere in the appellate brier,' the Petitioner ~sserts that "the Director has confused 
the positions of 'Team Lead' and 'Development Lead,"' which "is simply not correct:' because there 
is "a clear distinction between these two positions," and the terms cannot be used "interchangeably." 
This acknowledged distinction is inconsistent with the implied . contention that the foreign • 
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Matter of A- LLP -
employer's own payroll records did, m fact, use the terms interch~_ngeably for reasons of 
administrative convenience. 
After the Beneficiary's promotion, the pay receipts did not state a job title, instead showing his "Career 
Level" as "8." Counsel states, on appeal, that "Team Lead" is a "generic role attached to level 8." 
Once again, this assertion by counsel is unsupported by evidence from the actual employer. 
It is true that the Petitioner submitted the tax and payroll documents, not to establish the 
Beneficiary's title, but rather the chronology of his employment. Nevertheless, the purpose of their 
submission does not constrain the Director's ability to review all the information on those 
documents. The Director did not err by taking notice of the job title listed on_the documents. 
Counsel claims there is a "clear distinction" between a development lead and a team lead while 
contending that there is no such distinction between a development lead and an associate manager. 
Counsel states that the Beneficiary's advancement from one position to the other "was a progression 
promotion" to "more sophisticated projects," while his "role did not fundamentally change." The 
record lacks verifiable, independent evidence (rather than statements prepared specifically to support 
this petition) to support this assertion. Payroll records from 2013 show a change in designation and 
a significant increase in salary, and the Petitioner has not submitted corporate documentation 
formally defining the duties and responsibilities of a team lead, development lead, and associate 
manager. 
The Petitioner's new assertions about the Beneficiary's past employment, made in the context of 
seeking immigration benefits for him, are not ·consistent with documentary evidence that existed at 
the time of that employment. The Petitioner must resolve this crucial discrepancy with .independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 
1988). The Petitioner has not done so. We can approve a petition only after a determination that the 
facts stated in the petition are true. Section 204(b) of the Act, 8 U.S.C. § 1154(b). 
C. Staffing 
The Petitioner asserted that the Beneficiary was a personn~I manager who "was personally and 
exclusively responsible for directing, managing, and overseeing the activities of ... 15 professional 
employees," specifically: 
• 1 Associate Manager 
• 3 Team Leads 
• 6 Senior Software Engineers 
• 5 Associate Software Engineers 
The Petitioner submitted an organizational chart showing the Beneficiary as "Assistant Manager" 
and all 15 of the positions below the Beneficiary. 
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Matter of A- LLP \ ~ 
The Director requested additional information and evidence regarding the Beneficiary's claimed 
subordinates, including salary information. The Director specified that this information should 
reflect the Beneficiary's claimed 2011-2013 position as a development lead. 
In response, the Petitioner stated that, as a development lead, the Beneficiary "was charged with 
directing, managing, and overseeing a dedicated Team which provided professional consulting and 
advanced IT services to some of [ the foreign company's] most prestigious clients." The Petitioner 
submitted the same list of 15 subordinates. The Petitioner did not provide the requested salary 
information, which may have illuminated the hierarchical standing of the individual employees .. 
The Petitioner submitted a second organizational chart, showing the Beneficiary as a development 
lead, immediat~ly subordinate to a senior manager and immediately superior to an associate manager 
and the other positions listed above. 
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In the denial notice, the Director questioned the claim that a development lead would be superior to, 
and have authority to hire and fire, an associate manager. . The Director also noted that the initial 
version of the organizational chart did not show any "development lead" position. 
On appeal, counsel states. that "the Director has confused the positions of 'Team Lead' and 
'Development Lead,"' and counsel contends that "it is quite common for an associate manager to 
function in a subordinate role to an effective project lead (Development Lead)." This is another 
unsupported claim, with no evidentiary weight in this proceeding. 
The Petitioner states: "as the initial organizational chart covered [the Beneficiary's] position of 
Associate Manager, it would naturally not include his preceding position as Development Lead." 
Certainly a single chart would· not show two different positions held by the same person, but the 
greater issue is that it does not show any development leads at all. This omission is significant when 
viewed in conjunction with the lack bf contemporaneous evidence calling the Beneficiary a 
developm'ent lead. 
The Petitioner asserts: "what is essential is that [the organizational chart] is wholly consistent with 
the detailed, information provided in" a letter from the Petitioner. Both the chart and the letter were 
prepared at the same time for the same purpose, ai1d therefore it is to be expected that they contain 
the same information. Neither of these record exhibits explains or resolves the issues that the 
Director raised. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not met its burden 
of proof to establish that the Beneficiary was a· personnel manager from August 2011 to August 
2013. . 
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Matter of A- LLP 
III. CONCLUSION 
The Petitioner did not establish that the Beneficiary was employed abroad in a managerial capacity 
for at least one year_ during the three years preceding his entry into the United States. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-LLP, ID# 2061604 (AAO Feb. 1, 2019) 
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