dismissed EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 09389939 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 1, 2020 
Form I-140, Immigrant Petition for a Multinational Executive or Manager 
The Petitioner, an IT services and solutions business with specialization in banking solutions, seeks to 
permanently employ the Beneficiary 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. § 1153(b)(l)(C). This employment-based "EB-1" immigrant 
classification allows a U.S. employer to permanently transfer a qualified foreign employee to the 
United States to work in a managerial or executive capacity. 
The Director of the Nebraska Service Center denied the petition on the ground that the Petitioner did 
not establish that it employed the Beneficiary at a branch entity in India, in a managerial capacity, 1 for 
at least one year before the filing of the petition, as required by section 203(b)(l)(C) of the Act. The 
Petitioner filed an appeal, which we dismissed. 
The matter is now before us on a motion to reopen . Upon review, we will dismiss the motion . 
1. LAW 
The term "managerial capacity" is defined in section 101(a)(44)(A) of the Act, 8 U.S.C. 
§ l 101(a)(44)(A), as "an assignment within an organization in which the employee primarily -
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 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; 
(iii) if another employee or other employees are directly supervised, has the authority 
to hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization) or, if no other employee is directly supervised, 
1 The Petitioner does not assert that the Beneficiary was employed in an executive capacity at the branch entity in India. 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. 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." 
II. ANALYSIS 
The petition was accompanied by a letter from the senior director of human resources at the 
Petitioner's branch entity id I India, which stated the Beneficiary was employed as a senior 
consultant from October 2005 to January 2009 and listed his job duties as follows: 
• Developing Enterprise Applications and System study and Configuration of customer's 
business process in ERP LN; 
• Implementation of manufacturing, Order management, EDI, Warehouse management, 
Supply Chain management, Enterprise planning and Central Invoicing modules of Infor 
ERP LN, BaaN IV & BaaN; 
• Design, develop and upgrade Enterprise Applications using Baan (Baan IV, Baan V and 
ERP LN and its interface with any web based application. 
• Prepare Technical Design Documents, Test Plans, Test Cases, UAT, Use Cases, User 
Manuals and Production Support Plans. 
The Petitioner also submitted pyramid and block charts of the Indian entity's organizational structure. 
In response to the Director's notice of intent to deny (NOID) the Petitioner submitted a more expansive 
description of the Beneficiary's job duties in India, listing nine specific managerial duties associated 
with the management of the "BAAN ERP Implementation project unit in our India office." In the 
NOID response the four duties originally listed in the letter accompanying the petition comprised just 
20% of the Beneficiary's total time on the job, and were categorized as non-managerial "project work 
activities." While the Petitioner asserted that the Beneficiary managed five subordinate consultants, 
and submitted evidence that the Beneficiary was a "reviewer" of various BAAN ERP Implementation 
projects and identified himself as "project manager" in some business-related emails, the Director 
discussed the evidentiary inconsistencies in the organizational charts concerning the Indian entity's 
line of command and the "completely different" description of the Beneficiary's job duties between 
the original petition and the response to the NOID which, in the Director's view, "create[d] doubt as 
to the true nature of the [B]eneficiary's role with the foreign entity." The Director concluded that the 
evidence of record did not establish that the Beneficiary worked in a managerial capacity with the 
foreign entity. 
On appeal the Petitioner reiterated its contention that the Beneficiary was employed in a managerial 
capacity with the Indian entity. The Petitioner asserted that the previously submitted job descriptions 
for the Beneficiary's position in India did not contradict each other because the four job duties 
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originally listed in the letter accompanying the petition are embedded in the broader description of the 
job duties submitted in response to the NOID. The Petitioner also claimed that because the four job 
duties originally listed constituted only 20% of the Beneficiary's job time, and the managerial duties 
described in response to the NOID constituted 80% of the Beneficiary's job time, the Beneficiary's 
duties were primarily managerial. 
In dismissing the appeal, we stated that the Petitioner did not submit sufficient evidence demonstrating 
that the Beneficiary was employed by the Indian entity in a managerial capacity. We discussed in 
detail the expanded list of allegedly managerial duties submitted in response to the NOID and 
concluded that despite the Petitioner's claim that the Beneficiary was a personnel manager, our 
breakdown of the job duties indicated that less than one quarter of the Beneficiary's time was spent 
managing other personnel. The bulk of the Beneficiary's time appeared to be operational in nature -
providing and coordinating IT services, business communications with clients, and ensuring the timely 
delivery ofIT services. While acknowledging that the Beneficiary's position in India involved some 
supervisory duties, we concluded that they were ancillary to the position and did not occupy the 
primary portion of the Beneficiary's time. Nor did the organizational charts support the claim of 
managerial capacity since they depicted the Beneficiary's position as one member of a team rather 
than managerial with clearly delineated subordinates. 
In its motion to reopen the Petitioner reiterates its contention that the Beneficiary's position with the 
Indian entity was primarily managerial in nature. The regulation at 8 C.F.R. § 103.5(a)(2) provides 
that: 
A motion to reopen must state the new facts to be provided in the reopened proceeding 
and be supported by affidavits or other documentary evidence. 
In its motion brief the Petitioner identifies five employees of the Indian entity who it claims reported 
directly to the Beneficiary and asserts that "the organization chart clearly distinguishes this hierarchy." 
The Petitioner submits photocopied letters from four of the five individuals, virtually identical in 
wording and all dated December 4, 2019, each of whom asserts that he was a "consultant" at the Indian 
entity working on the "Implementation ofBAAN ERP Applications" during the years 2006-2008 and 
that the Beneficiary was his immediate supervisor. 2 According to each of the consultants, the 
Beneficiary performed the following managerial and supervisory tasks: 
• Managed my daily work activities in multiple BaaN ERP LN implementation projects. 
• Provided instructions to perform daily activities. 
• Verified my work in between frequently and guided me to perform in a better way. 
• Reviewed the custom programs developed by me in BAAN ERP and recommended for 
corrections. 
• Approved the custom program developed by me after fixing the corrections. 
2 The Petitioner also submits copies of earnings statements issued to two of the consultants in the years 2007 and 2008, as 
evidence of their employment along with copies of an organizational chart of the Indian entity that is substantially the 
same as an organizational chart previously submitted in support of the appeal and two letters from employees of the Indian 
entity that were likewise submitted in support of the appeal and already considered by us in our dismissal of the appeal. 
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• Provided feedback on my work and recommended for improvement of Soft skills and 
functional skills. 
• Approved my Leaves [sic]. 
• Did my performance reviews. 
• Recommended for Increments. 
• Recommended for Trainings. 
Even if the Beneficiary did perform these managerial and supervisory functions in India, the newly 
submitted letters do not claim, nor do they demonstrate, that the Beneficiary's primary job with the 
Indian entity was supervising and managing the consultants. The letters do not conflict with our 
previous conclusion in our appellate decision that the majority of the Beneficiary's time appeared to 
be spent performing operational duties such as providing and coordinating IT services, business 
communications with clients, and ensuring the timely delivery of IT services. In short, the new 
evidence submitted on motion does not show that the Beneficiary's job duties were primarily 
managerial and supervisory in nature during his employment with the Indian entity. 
Moreover, the Petitioner has still provided no explanation for why its original description of the 
Beneficiary's job duties in India consisted of four operational activities that have no managerial 
component, whereas in response to the NOID these operational duties were relegated to just 20% of 
the Beneficiary's alleged job duties and a new list of managerial duties was added that allegedly 
comprised 80% of the Beneficiary's job duties in India. The Petitioner previously asserted that there 
was no conflict between the original petition and the response to the NOID because the four 
operational duties originally listed were included in the expanded list of job duties. But that assertion 
does not explain why the alleged managerial duties were not identified in the original letter with the 
petition, especially it: as claimed, they constituted 80% of the Beneficiary's total job duties. 
It is incumbent upon a petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Attempts to explain or reconcile such inconsistencies will not suffice without competent 
evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Doubt cast on any aspect of the petitioner's evidence also reflects on the reliability of the petitioner's 
remaining evidence. See id. 
In sum, no new facts and supporting documentary evidence have been submitted to overcome our 
previous conclusion that the Beneficiary was not employed by the Indian entity in a "managerial 
capacity" as defined in section 101(a)(44)(A) of the Act. 
The Petitioner's final argument is that neither the Director in the initial decision nor this office in the 
appellate decision applied the correct standard of proof: which is preponderance of the evidence in 
accordance with Matter of Chawathe, 12 I&N Dec. 369 (AAO 2010). Since this is a legal issue, it is 
not technically before us in the Petitioner's motion to reopen, which must be based on new facts and 
supporting documentation. To address the standard of proof issue as well, the Petitioner should have 
filed a motion to reconsider along with its motion to reopen. As the regulation at 8 C.F.R. 
§ 103.5(a)(3) provides, a motion to reconsider must establish that our previous decision was based on 
an incorrect application oflaw or policy. Though not technically before us in the absence of a motion 
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to reconsider, we note for the record that the Petitioner has provided no evidence that the appropriate 
standard of proof was not applied in this case. The Petitioner asserts that the documentary evidence it 
has submitted is "relevant, probative, and credible" and "warrant[ s] substantial weight in establishing 
the [B]eneficiary's qualification from the foreign entity." As discussed in this decision, however, the 
Petitioner's evidence has been thoroughly considered and does not warrant any change in our previous 
decision that the Petitioner has not established the Beneficiary's "managerial capacity" in his previous 
employment with the foreign entity. 
II. CONCLUSION 
The Petitioner has not shown proper cause for us to reopen the proceeding in accordance with the 
provisions of 8 C.F.R. § 103.5(a)(2). 
ORDER: The motion to reopen is dismissed. 
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