dismissed EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 9301751 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 01, 2020 
Form 1-140, Petition for Multinational Manager or Executive 
The Petitioner seeks to permanently employ the Beneficiary as its IT [information technology] director 
under the first-preference, immigrant classification for multinational managers or executives. See 
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. The Director concluded that, contrary 
to the Petitioner's claims, the company did not demonstrate its proposed U.S. employment of the 
Beneficiary, or his prior work for its Mexican affiliate, in a managerial capacity. 
The Petitioner bears the burden of establishing 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. MULTINATIONAL MANAGERS AND EXECUTIVES 
A petition for a multinational manager or executive must demonstrate that, in the three years before a 
beneficiary's U.S. entry as a nonimmigrant, the petitioner, or a subsidiary or affiliate of it, employed 
the beneficiary abroad for at least one year in a managerial or executive capacity. 8 C.F.R. 
§§ 204.5U)(3)(B), (C). Also, the petitioner must have been doing business in the United States for at 
least one year and must offer the beneficiary a U.S. position in a managerial or executive capacity. 
8 C.F.R. §§ 204.5U)(3)(D), (5). Further, U.S. Citizenship and Immigration Services (USCIS) may 
request additional evidence. 8 C.F.R. § 204.5U)(3)(ii). 
II. THE PROPOSED POSITION IN THE UNITED STATES 
The term "managerial capacity" refers to a position that would primarily: 1) manage the organization 
or a department, subdivision, function, or component of it; 2) supervise and control the work of other 
supervisory, professional, or managerial employees, or manage an essential function of the 
organization, department, or subdivision; 3) have authority to hire and fire or recommend those and 
other personnel actions, or, if supervising no employees, function at a senior level within the 
organizational hierarchy or regarding the managed function; and 4) exercise discretion over the daily 
operations of the activity or function for which the employee has authority. 8 C.F.R. § 204.5U)(2) 
(defining the term "managerial capacity"). 
As the term's definition indicates, managerial capacity may involve management of personnel or an 
essential function. The Petitioner does not assert the Beneficiary's proposed management of a function 
in the United States, or his prior management of one in Mexico. We will therefore consider both his 
proposed and prior employment as a personnel manager. Personnel managers must primarily 
supervise and control the work of other supervisory, professional, or managerial employees. 8 C.F.R. 
§ 204.50)(2). "A first-line supervisor is not considered to be acting in a managerial capacity merely 
by virtue of his or her supervisory duties unless the employees supervised are professional." 8 C.F.R. 
§ 204.5U)(4)(i). 
In evaluating the managerial nature of an offered position, USCIS examines the position's job duties. 
See 8 C.F.R. § 204.5(j)(5) (requiring a petitioner to "clearly describe the duties to be performed by the 
alien"). USCIS may also consider: the organizational structure of a petitioner; the nature of its 
business; the existence of other employees who may relieve a beneficiary from performing operational 
activities; and the duties of a beneficiary's subordinates. 
Here, the Petitioner states its employment of the Beneficiary in the offered position of IT director in 
nonimmigrant visa status as an intracompany transferee since September 2016. The Petitioner's 
business involves providing information to the global automotive industry about parts, diagnostics, 
repairs, and collisions, as well as business tools and support services. The company's initial 
organizational chart indicates that the Beneficiary would directly supervise eight professionals, with 
an additional 16 employees under them. 
The Petitioner initially stated that the Beneficiary would devote the following percentages of his time 
to the following "primary accountabilities:" 
I 15%. Personnel development, staffing, resource allocation. 
I 15%. Strategic, operating, budget planning and plan execution. 
I 25%. Demand Manager between business functional unit and technology department. 
I 15%. Conducts, designs, reviews and monitors status of development projects. 
I 10%. Vendor relationships, contract negotiations. 
I 10%. Evaluation of new technology. 
I 10%. Communication of direction, strategy, vision to the organization. 
In response to the Director's written request for additional evidence (RFE), however, the Petitioner 
described the Beneficiary's proposed performance of the following duties: 
I 10%. Managing profit and loss planning, strategic planning, and financial planning. 
I 15%. Conducting design review and monitoring the status of development projects through 
the oversight of professional team members. 
I 15%. Recruiting and assisting Managers, R&D, and technical staff and career planning for IT 
Managers, Solutions Architects, Lead Business Analysts. 
I 20%. Architectural and infrastructure implementation planning. 
I 10%. Allocating training resources. 
I 30%. Communicate the direction, strategy, and vision to the organization via the VP of 
technology. 
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The Petitioner's RFE response includes new descriptions of many of the Beneficiary's areas of 
responsibility, apparently emphasizing duties previously subsumed in his primary accountabilities. 
The information also includes changes to the amount of time he would devote to certain duties. For 
example, the Petitioner initially stated that the Beneficiary would spend 10% of his time on 
"[c]ommunication of direction, strategy, vision to the organization." The updated information, 
however, indicates that those same duties would comprise 30% of his time. In addition, the Petitioner 
initially stated that the Beneficiary would spend 15% of his time on "[p]ersonnel development, 
staffing, resource allocation." The updated information indicates he would devote 15% of his time to 
"[r]ecruiting and assisting Managers, R&D, and technical staff and career planning for IT Managers, 
Solutions Architects, Lead Business Analysts," plus an additional 10% of his time "[a]llocating 
training resources." 
These discrepancies cast doubt on the true job duties of the offered position and the actual amounts of 
time the Beneficiary would devote to them. See Matter of Ho, 19 l&N Dec. 582, 591 (BIA 1988) 
(requiring a petitioner to resolve inconsistencies of record with independent, objective evidence 
pointing to where the truth lies). Moreover, a petitioner must establish eligibility at the time of filing. 
8 C.F.R. § 103.2(b)(1). A petitioner may not make material changes to a petition that has already been 
filed in an effort to conform to requirements. Matter of lzummi, 22 l&N Dec. 169, 175 (AA0 1998). 
On appeal, the Petitioner does not resolve the discrepancies in the job duties of the offered position or 
in the percentages of time the Beneficiary would devote to them. The Petitioner provides a new letter 
with more detailed, proposed job duties. But these descriptions correspond to the information the 
company provided in its RFE response. The new letter does not explain the discrepancies between 
the information initially provided and the information in the RFE response. See Matter of Ho, 19 l&N 
Dec. at 591 (requiring a petitioner to resolve inconsistencies of record). 
Even if the Petitioner's RFE response correctly describes the offered job duties, the response would 
not demonstrate the Beneficiary's proposed employment in primarily a managerial capacity. The 
record does not demonstrate how the Beneficiary's duties of communicating the direction, strategy, 
and vision to the organization via the VP of technology (30%), architectural and infrastructure 
implementation planning (20%), and managing profit and loss planning, strategic planning, and 
financial planning (10%) would involve supervising and controlling the work of other supervisory, 
professional, or managerial employees. See 8 C.F.R. § 204.50)(2) (defining the term "managerial 
capacity"). The record indicates that those supervised by the Beneficiary would work on software 
development, rather than on planning and communications activities. The RFE response therefore 
would not establish the Beneficiary's proposed duties in primarily a managerial capacity. 
Unresolved inconsistencies cast doubt on the job duties of the offered position and the amounts of 
time the Beneficiary would purportedly spend on them. Thus, the Petitioner has not demonstrated its 
proposed employment of the Beneficiary primarily in a managerial capacity. We will therefore affirm 
the petition's denial. 
Ill. THE POSITION IN MEXICO 
The record indicates the Beneficiary's employment by the Petitioner's Mexican affiliate as a technical 
manager from March 2013 until September 2016. The organizational chart of the foreign entity shows 
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the Beneficiary's direct supervision of 10 software professionals, with another nine employees beneath 
them. 
The Petitioner initially stated that the Beneficiary spent the following percentages of time on the 
following job duties as technical manager in Mexico: 
I 30%. Mentoring team leads and developers. 
I 40%. Managing day-to-day activities of the software development team. 
I 20%. Architectural and design duties. 
I 10%. Research on new technologies and industry standards. 
In response to the Director's RFE, however, the Petitioner described the Beneficiary's most recent 
duties in Mexico, as follows: 
I 10%. Lead, coach, and mentor software developers and provide oversight to their work 
product. 
I 10%. Train, onboard, and develop new hires. 
I 30%. Guide his software development team in performance improvements and design 
improvement. 
I 30%. Provide oversight to the employees developing corporate applications for business 
groups. 
I 5%. Develop IT budgets and participate in fiscal planning to allocate resources. 
I 15%. Provide oversight to teams who are responsible for maintaining and supporting software 
platforms used by internal and external customers. 
As with the Beneficiary's proposed U.S. duties, the Petitioner provided two inconsistent sets of 
information regarding the Beneficiary's purported managerial activities in Mexico. The RFE response 
adds job duties not initially mentioned by the Petitioner, including: training, onboarding, and 
developing new hires; and developing IT budgets and participating in fiscal planning to allocate 
resources. The RFE response also omits duties initially stated by the company, such as: architectural 
and design duties; and research on new technologies and industry standards. In addition, the RFE 
response indicates that the Beneficiary spent much more time supervising others than the Petitioner 
initially stated. The company initially indicated that the Beneficiary spent 40% of his time managing 
the daily activities of the software development team. But the RFE response states that he devoted 
30% of his time to guiding the software development team, 30% of his time to overseeing employees 
developing corporate applications, and 15% of his time overseeing teams maintaining and supporting 
software platforms. 
These unresolved inconsistencies cast doubt on the true job duties of the Beneficiary in Mexico and 
the amounts of time he spent on them. See Matter of Ho, 19 l&N Dec. at 592 (requiring a petitioner 
to resolve inconsistencies of record with independent, objective evidence pointing to where the truth 
lies). Also, as previously indicated, a petitioner may not make material changes to a petition that has 
already been filed in an effort to conform to requirements. Matter of lzummi, 22 l&N Dec. at 175. 
On appeal, the Petitioner provides a letter detailing additional duties that the Beneficiary purportedly 
performed in Mexico. But these descriptions correspond to the information in the Petitioner's RFE 
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response and do not explain the inconsistencies between the company's initial statements and its RFE 
response. Because of the unresolved discrepancies in the Beneficiary's job duties and the percentages 
of time he devoted to them, the record does not establish his employment abroad in primarily a 
managerial capacity. 
Also, although unaddressed by the Director, copies of an IRS Form W-2, Wage and Tax Statement, 
and payroll records indicate that a company other than the Petitioner pays the Beneficiary's wages in 
the United States. Without resolution, the W-2 and payroll records raise questions regarding the 
Beneficiary's proposed employment. If the other company would employ the Beneficiary in the 
United States, the Petitioner must document, in any future filings in this matter, a qualifying 
relationship between the other company and the Beneficiary's foreign employer and explain the 
inconsistency in the petition. 
IV. CONCLUSION 
Contrary to the Petitioner's claims, the company has not demonstrated its proposed U.S. employment 
of the Beneficiary, or his prior work abroad, in the claimed managerial capacity. We will therefore 
affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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