dismissed EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 8-M-S-S- rNC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 11, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an information technology services company, seeks to permanently employ the 
Beneficiary as a product development manager under the first preference immigrant classification 
for multinational executives or managers. Immigration and Nationality Act (the Act) 
section 203(b )( 1 )(C), 8 U .S.C. § l 153(b )( 1 )(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 the Beneficiary was employed abroad in a managerial or executive 
capacity for at least one year in the three years preceding his entry into the United States as a 
nonimmigrant. 
On appeal, the Petitioner asserts that the Director overlooked foreign paystubs it claims substantiate 
the Beneficiary's employment in a managerial or executive capacity for the required one year 
abroad. 
Upon de nova review, we will dismiss the appeal. 
L 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. § 204.5(j)(3). 
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Matter of 8-M-S-S- Inc. 
ll. FOREIGN EMPLOYMENT IN A MANAGERJAL OR EXECUTIVE CAPACITY 
The sole issue we will analyze is whether the Petitioner established that the Beneficiary was 
employed abroad in a managerial or. executive capacity for at least one year in the three years 
preceding his entry into the United States as a nonimmigrant. 
We note that the Petitioner did not explicitly indicate whether the Beneficiary was employed in a 
managerial or executive capacity abroad. However, given that the Petitioner states the Beneficiary 
would be employed as a product development manager (security) in a managerial capacity in the 
United States and that he was employed as a product development manager abroad up until his entry 
in May 2014, it appears likely that it asserts he acted in a managerial capacity abroad. 
In support of the petition, the Petitioner submitted the Beneficiary's resume indicating that he had 
worked abroad as a product development manager for (the foreign 
employer) from August 2013 to "the present." 1 The resume also stated that the Beneficiary had 
previously worked as a technical lead for another foreign company, 
(F-S-P-, Ltd.), from July 2011 to July 2013. The Petitioner submitted supporting documentation 
indicating that the Petitioner had acquired F-S-P-, Ltd. in January 2013. The Petitioner also 
provided foreign paystubs issued by F-S-P-, Ltd. dating from August 2012 to July 2013 listing the 
Beneficiary's title as "Product Manager." 
In a request for evidence (RFE), the Director requested additional evidence to demonstrate that the 
Beneficiary had been employed abroad in a managerial or executive capacity for at least one year. 
For instance, the Petitioner requested that the Petitioner submit an explanation of the Beneficiary's 
specific daily tasks abroad and a list of employees in his immediate department including the duties, 
educational levels, salaries, and payroll documentation specific to these foreign employees. 
The Petitioner's response letter dated in November 2017 again stated that the Beneficiary had been 
employed by the foreign employer as a product development manager from August 2013 to April 
2014 and as a technical lead with F-S-P-, Ltd. from July 2011 to July 2013. The Petitioner also 
submitted an 2017 organizational chart reflecting that the Beneficiary supervised a product 
development team in India, including an 1AM manager, an 1AM lead, a cloud manager, and a cloud 
lead. Further, the Petitioner submitted a chart including duty descriptions, education levels, and 
salaries for these employees. 
In denying the petition, the Director pointed to the Petitioner's statements which indicated that the 
Beneficiary had worked as a product development manager from August 2013 to April 2014 and 
noted that this foreign employment amounted to only approximately eight to nine months, or less 
than the required one year of qualifying foreign employment. On appeal, the Petitioner emphasizes 
the foreign paystubs provided for the Beneficiary and asserts that the paystubs substantiate his 
1 We note that the petition was filed on June 9, 20 I 6. 
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Matter of 8-M-S-S- Inc. 
foreign employment from August 2012 to· August 2013. The Petitioner contends that the Director 
dismissed this evidence and focused only on the foreign employer's letter which "erroneously 
provided the beneficiary's employment period as August 2013 to April 2014." 
Upon review, the Petitioner has not submitted sufficient evidence to demonstrate that the Beneficiary 
was ,employed abroad in a managerial capacity for at least one year in the three years preceding his 
entry into the United States. United States Citizenship and Immigration Service (U_SCIS) records 
indicate that the Beneficiary entered the United States as a nonimmigrant in May 2014. 2 As such, 
the Petitim)er was required to establish that the Beneficiary was employed in a managerial capacity 
abroad for _at least one year from May 2011 to May 2014. 
First, the Petitioner has not submitted sufficient supporting evidence to substantiate the Beneficiary's 
foreign employment for one year in a managerial capacity from May 2011 to May 2014. In response 
to the Director's RFE, the Petitioner submitted a 2017 organizational chart indicating that the 
Beneficiary supervised a product development team in India with four subordinates along with duty 
descriptions, education levels, salaries, and payroll documentation specific to these employees. 
However, it appears this evidence was relevant to the time of the Petitioner's response to the RFE in 
November 2017 and reflective of the Beneficiary's position in the United States overseeing an 
offshore development team. This evidence is not probative to demonstrating the Beneficiary's 
qualifying foreign employment in a managerial capacity for one year from May 2011 to May 2014. 
Further, the Petitioner has made conflicting statements and submitted insufficient evidence specific 
to the Beneficiary's asserted qualifying foreign employment. As discussed, the Petitioner stated in 
the Beneficiary's resume that he had been employed as a technical lead from July 2011 to July 2013 
with F-S-P-, Ltd., which was later acquired by the Petitioner, and as a product manager with the 
foreign employer from August 2013 to the date of his entry into the United.States in May 2014. 
Similarly, in response to the RFE, the Petitioner submitted a letter with the same asserted foreign 
employment for the Beneficiary. 
In contrast, the Petitioner submitted foreign paystubs reflecting that the Beneficiary was paid by F-S­
P-, Ltd. in the position of product manager from August 2012 to July 2013. On appeal, the 
Petitioner asserts that the Beneficiary's employment as a "technical lead" in the provided RFE 
response letter was "erroneous." However, the Petitioner does not explain this error and why the 
Beneficiary was specifically listed twice on the record, in his resume and in an RFE response letter, 
as a technical lead with F-S-P-, Ltd. from July 2011 to July 2013. Further, it does not submit 
additional probative evidence to overcome these discrepancies. The Petitioner must resolve 
discrepancies in the record with independent, objective evidence pointing to where the truth lies. 
Matter(~{ Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
2 USCIS records reflect that the Petitioner was approved for an L-1 A intracompany transferee visa on behalf of the 
Beneficiary for the period January 23, 2014, to January 22, 2017. 
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Maller of 8-M-S-S- Inc. 
In addition, the Petitioner submits Indian income tax returns for the Beneficiary on appeal reflecting 
that he earned 984,600 Indian rupees from April 2011 to March 2012, 1,056,600 Indian rupees from 
April 2012 to March 2013, and 1,488,350 Indian rupees from April 2013 to March 2014. This 
documentation reflects that the Beneficiary received a substantial increase in pay during the 2013-14 
fiscal year and this appears to coincide with statements on the record indicating that he was 
promoted to the product development manager position in July 2013. Given this evidence and the 
Petitioner's statements and on the record, it appears more likely that the Beneficiary was employed 
as a technical lead from July 2011 to July 2013. 
Further, the Petitioner also asserted that the Beneficiary was only employed as product development 
manager with the foreign employer for approximately nine months prior to his entry into the United 
States. Even if the Petitioner had provided supporting evidence to substantiate this Beneficiary's 
foreign employment in a managerial capacity, such as an organizational chart specific to this period 
or duty descriptions and education relevant to any subordinates he oversaw during this time, this 
employment does fulfill the required one year of qualifying employment abroad. Furthermore, the 
Petitioner has not submitted a duty description for the Beneficiary's technical lead position which 
appears to encompass a portion of his required one year of foreign employment, nor has it described 
or documented his subordinates, if any, while working in this position. Without this evidence, it has 
not demonstrated that the Beneficiary was employed for at least one year abroad in a managerial 
capacity. 
III. CONCLUSION 
The Petitioner did not establish that the Beneficiary was employed abroad in a managerial or 
executive capacity for at least one year in the three years preceding his entry into the United States 
as a nonimmigrant. 
ORDER: The appeal is dismissed. 
Cite as Matter o.f8-M-S-S-Jnc., ID# 1655212 (AAO Oct. 11, 2018) 
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