dismissed EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-USA, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 14, 201 7 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an information technology services company, seeks to permanently employ the 
Beneficiary as its manager under the first preference immigrant· classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b )(1 )(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 revoked the approval of the petition, 1 concluding that the 
Petitioner did not establish, as required, that: (1) it has the ability to pay the Beneficiary's proffered 
wage; (2) the Beneficiary was employed abroad in a managerial capacity; and (3) the Beneficiary 
would be employed in the United States in a managerial capacity.2 The Director denied the 
Petitioner's subsequent motion to reopen and reconsider. 
On appeal, the Petitioner submits additional evidence and asserts that the Director did not properly 
consider the Beneficiary's job duties or the professional nature of the duties perfmmed by his 
. subordinates in evaluating his employment in a managerial capacity. Further, the Petitioner argues that 
the Director failed to follow established case law in evaluating whether the Petitioner has the ability to 
pay the proffered wage. 
Upon de novo review, we will withdraw the Director's finding that the Petitioner did not establish 
that it will employ the Beneficiary in a managerial capacity. 3 However, as the Petitioner did not 
overcome the remaining two grounds for denial, we will dismiss the appeal. 
1 
The Director originally approved the petition on May 14, 2013, and then issued a decision denying the petition on June 
7, 2013. The Petitioner appealed that denial, arguing that the Director did not have the authority to deny a petition that 
was already approved. We agreed with the Petitioner that the denial was inappropriate, withdrew the Director's decision, 
and remanded the matter, advising that revocation is the appropriate procedure for reversing a decision to approve a 
petition. On remand, the Director issued a notice of intent to revoke (NOIR) and ultimately revoked the petition's 
approval. The Director did not follow our instructions to certify the revocation decision to our office for review. 
Therefore, although the Petitioner is appealing the Director's decision dismissing its combined motion, we will conduct a 
de novo review of the entire record of proceeding. 
2 
The Petitioner did not claim that the Beneficiary had been or would be employed in an executive capacity. 
3 
The Petitioner has now established a preponderance of the evidence that the Beneficiary primarily manages the 
petitioning company, supervises a subordinate staff that includes professional employees, has the authority to hire and 
fire subordinates, and exercises discretionary authority over the day-to-day operations of the Petitioner, consistent with 
Matter of E-USA, LLC 
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 )(1 )(C) of the Act. 
A United States employer may file a Form 1-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(1)(C) ofthe Act as a multinational executive or manager. The petition 
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. 
§ 204.50)(3). 
Section 205 of the Act states: "The Secretary of Homeland Security may, at any time, for what he 
deems to be good and sufficient cause, revoke the approval of any petition approved by him under 
section 204. Such revocation shall be effective as ofthe date of approval of any such petition." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board 
of Immigration Appeals has stated: 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (quoting Matter (~lEstime, 19 I&N Dec. 450 (BIA 
1987)). 
II. ABILITY TO PAY 
The Director revoked the approval of the petition, in part, based on a finding that the Petitioner did 
not establish its ability to pay the Beneficiary the proffered wage of $42,000 per year as of the 
priority date on August 2, 2012, or its continuing ability to pay this wage. 
the definition of "managerial capacity" at section IOI(a)(44)(A) of the Act; 8 U.S.C. § IIOI(a)(44)(A). Further, the 
Petitioner provided sufficient evidence to establish that the foreign entity's sales and IT staff contribute to the 
Petitioner's operations in the United States and further relieve the Beneficiary from having to spend significant portions 
of his time on non-managerial duties. 
2 
Matter of E- USA, LLC 
Any petition filed for an employment-based immigrant, which requires an offer of employment must 
be accompanied by evidence that the prospective United States employer has the ability to pay the 
proffered wage. The petitioner must demonstrate this ability at the time the priority date is 
established and continuing until the beneficiary obtains lawful permanent residence. 8 C.F.R. 
§ 204.5(g)(2). To establish its ability to pay, a petitioner must submit copies of its annual reports, 
federal tax returns, or audited financial statements. !d. 
The record of proceeding includes the Beneficiary's IRS Form W-2, Wage and Tax Statement, for 
2012 and 2013, as well as the Petitioner's federal tax returns (IRS Form 1120-F) for the years 2010 
through 2014. The Petitioner paid the Beneficiary $33,940 in wages in 2012 and $18,469.22 in 
2013.4 . 
In determining a petitioner's ability to pay the proffered wage, we will first examine whether it 
employed the beneficiary at the time the priority date was established. If a petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the 
proffered wage, this evidence will be considered prima facie proof of a petitioner's ability to pay a 
beneficiary's salary. The Petitioner employed the Beneficiary for much of 2012, but did not employ 
him when the August 2, 2012, priority date was established. 5 
As an alternate means of determining a petitioner's ability to pay, we will examine a petitioner's net 
income figure as reflected on the federal income tax return, without consideration of depreciation or 
other expenses. Reliance on federal income tax returns as a basis for determining a petitioner's 
ability to pay the proffered wage is well established by judicial precedent. Elatos Rest. Corp. v. 
Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcrafi Haw .. Ltd v. 
Feldman, 736 F.2d 1305 (9th Cir. 1984)); Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. 
Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 
539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
As the petition's priority date falls in August 2012, we must examine the Petitioner's tax return for 
2012 and for the years thereafter. As noted by the Director, the Petitioner reported net losses on its 
tax returns for 2012, 2013, and 2014. 
If a petitioner does not have sufficient net income to. pay the proffered salary, we will review its net 
current assets. Net current assets are the difference between a petitioner's current assets and current 
liabilities. Net current assets identify the amount of "liquidity" that a petitioner has as of the date of 
the petition and is the amount of cash or cash equivalents that would be available to pay the 
proffered wage during the year covered by the tax return. As long as we are satisfied that a 
petitioner's current assets are sufficiently "liquid" or convertible to cash, or cash equivalents, then a 
petitioner's net current assets may be considered in assessing the prospective employer's ability to 
pay the proffered wage. If the petitioner's net income or net current assets is not suff-icient to 
' 
4 The Petitioner paid the Beneficiary $42,000 in 20 II. . 
5 
The record shows that the Beneficiary did not receive any wages between June 14 and August 27, 2012, as he had no 
employment authorization during this period. 
3 
Matter of E-USA, LLC 
demonstrate the petitioner's ability to pay the proffered wage, we may also consider the overall 
magnitude of the petitioner's business activities. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 
(Reg'l Comm'r 1967). 
The Petitioner reported negative net current assets in 2012 and 2013, and had net current assets of 
$1,500 in 20 14; therefore, the Director correctly concluded that the Petitioner had not shown its 
ability to pay the proffered wage of $42,000 based on its net current income or assets. 
On appeal, the Petitioner claims that it did in fact establish the ability to pay the Beneficiary's wage 
as of the priority date, noting that, since the priority date fell in early August 2012, it need only show 
its ability to pay the Beneficiary's salary for approximately five months (August through December), 
or a total amount of $17,500. The Petitioner maintains that since it paid the Beneficiary $33,940 in 
2012, it has established its ability to pay the Beneficiary the proffered wage as of the priority date. 
We note that, if we were to allow the Petitioner to prorate the Beneficiary's proffered wage for 2012, 
the Petitioner still would not meet its burden to show the ability to pay the full wage in that year. 
The Petitioner submitted payroll records documenting its 2012 payments to the Beneficiary after the 
petition's priority date of August 2. The Petitioner would need to demonstrate that it paid the 
Beneficiary $3,500 per month between August and December 2012, or a total of $17,500, if it seeks 
to rely on prorated wages for that fiscal year; we will not consider payments made prior to the 
priority date. The Petitioner's payroll records indicate that the Petitioner paid the Beneficiary 
$14,807.60 during this period, an amount less than the prorated proffered wage. 
The Petitioner concedes that it has not shown the ability to pay the Beneficiary's proffered wage in 
2013 and 2014. The Petitioner notes that the Beneficiary would have earned the profTered wage in 
2013, but his adjustment of status application was denied and his employment authorization 
cancelled in June 2013 when the Director erroneously issued a denial notice three weeks after 
approving the instant petition. 
The Petitioner emphasizes that the company's income "greatly suffered" when the Beneficiary had 
to be terminated in 2013, and asserts "these subsequent years are not dispositive." 6 The Petitioner 
further claims that the Director failed to follow the guidance provided in Matter <~l Sonegawa, 12 
I&N Dec. 612. In applying Sonegawa, the Director noted that, in assessing the totality of the 
circumstances in this matter, the Petitioner did not show that it had achieved steady growth in sales 
in previous years or an outstanding reputation in the industry. Further, the Director found the 
Petitioner had not explained any temporary or uncharacteristic disruption in its business activities 
comparable to the petitioner in Sonegawa. 
6 
We note that the cancellation of the Beneficiary's employment authorization did not prohibit the Petitioner from filing a 
new employment-based nonimmigrant petition on his behalf. The Beneficiary held L-1 A nonimmigrant classification 
from June 2010 to November 2011. (The Petitioner's November 2011 request for an extension of this status was denied 
in June 2012, and we dismissed the Petitioner's appeal of that denial in March 20 13). 
4 
Matter of E-USA, LLC 
On appeal, the Petitioner asserts that the Beneficiary's termination, caused by U.S. Citizenship and 
Immigration Services' (USCIS') erroneous denial ofthe petition in 2013, was in fact the "temporary 
and uncharacteristic disruption in the business." It maintains that the decline in revenue was 
"virtually inevitable" and that the company's financial health will be restored when the Beneficiary 
is restored to his position as manager. 
Pursuant to Sonegawa, we may consider evidence of a petitioner's ability to pay beyond its net 
income and net current assets. 12 I&N Dec. at 614-15. As in Sonegawa, we may consider such 
factors as: the number of years it has conducted business; the growth of its business; its number of 
employees; the occurrence of any uncharacteristic business expenditures or losses; its reputation in 
its industry; whether a beneficiary will replace a current employee or outsourced service; or other 
evidence of its ability to pay a proffered wage. !d. 
The Petitioner was established in February 2010. It had no gross sales or receipts in 2010, $123,534 
in 2011 (its first full year of operations), $113,804 in 2012, $101,000 in 2013, and $51 ,327 in 2014. 
The Petitioner did not report a positive net income in any year, including the years in which the 
Beneficiary was employed as its manager (part of 2010, all of 2011, most of 2012, and the first tive 
months of 2013). The Petitioner had not shown a substantial growth in business or number of 
employees since its establishment, and had been conducting business for less than two years when 
the petition was filed in 2012. By contrast, the petitioner in Sonegawa had reported profits in 10 out 
of 11 years. Sonegawa, 12 I&N Dec. at 614. Also, unlike in Sonegawa, the record does not indicate 
that the Petitioner enjoys an outstanding reputation in its industry, or the Beneficiary's replacement 
of a current employee or outsourced service. While the Beneficiary's loss of employment 
authorization may have impeded the company's growth, the company's performance during its brief 
history at the time of filing did not establish that this loss of employment authorization represented a 
mere temporary or uncharacteristic disruption of an otherwise growing and profitable business. 
After considering the totality of the circumstances under Sonegawa, the record does not establish the 
Petitioner's ability to pay the proffered wage. 
III. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary was employed abroad or 
would be employed in the United States in a managerial capacity. 
The law defines the term "managerial capacity" as an assignment in which an 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; has the authority to hire and tire or 
recommend those as well as other personnel actions, or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over th~ 
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). Further, "[a] first-line supervisor is not 
5 
Matter of E- USA, LLC 
considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional." Jd. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, USCIS must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development ofthe organization. Section 10l(a)(44)(C) ofthe Act. 
The record shows that the Petitioner's Turkish affiliate employed the Beneficiary as its information 
technology manager from February 2008 until November 2010. In revoking the approval of the 
petition, the Director reviewed the Beneficiary's foreign job description, observed that it appeared to 
include both qualifying managerial duties and non-qualifying duties, and concluded that the record 
did not contain sufficient information regarding his specific tasks to establish that they were 
primarily managerial in nature. The Director further found that the record did not establish that the 
Beneficiary supervised a subordinate staff of professional employees. Overall, the Director found 
that while the Beneficiary likely exercised a degree of discretion over the day-to-day operations in 
supervising the foreign entity's IT department, the record did not convey a sufticient understanding 
of the role to establish that he was employed in a qualifying managerial position. 
On appeal, the Petitioner maintains that the foreign job description it submitted in response to the 
NOIR was sufficiently detailed and consistent with the description provided at the time of filing, and 
that the record contains sufficient evidence to demonstrate that the Beneficiary supervised a team of 
professionals in Turkey, noting that each of the Beneficiary's three subordinates had either a 
bachelor's degree or its equivalent. Further, the Petitioner asserts that the Director's decision 
highlighted only three of the Beneficiary's job duties as "non-managerial" and failed to consider the 
duties that required the remaining 90% of his time while employed abroad. 
When examining the executive or managerial capacity of a beneficiary, we will look first to a 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Beyond the required 
description of the job duties, USCIS reviews the totality of the evidence when examining the 
claimed managerial or executive capacity of a beneficiary, including 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, our analysis of this issue will focus on the Beneficiary's duties as well as the foreign 
entity's organizational structure and staffing levels. 
A. Duties 
The Petitioner must show that the Beneficiary performed certain high-level responsibilities 
consistent with the statutory definition of managerial capacity. Champion World, Inc. v. INS, 940 
F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the Petitioner must prove that 
the Beneficiary was primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the foreign entity's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
6 
Matter of E-USA, LLC 
The record of proceeding contains three descriptions of the Beneficiary's former position as 
information technology manager for the foreign entity. Although the Director pointed out a minor 
discrepancy with regard to one area of responsibility, the three duty descriptions are substantially 
consistent with one another; therefore, we will focus on the most detailed of the three, submitted in 
response to the NOIR. Upon review, we agree with the Director's assessment that the job 
description includes managerial duties, non-managerial duties, and some duties that are too broad to 
be readily classified as qualifying or non-qualifying. 
The Petitioner stated that the Beneficiary allocated the largest proportion of his time (28%) to 
"supervising the IT team in regards to customer support, troubleshooting, installing systems and 
applications." When asked to elaborate, the Petitioner stated that this duty involved overseeing 
"customer support, trouble shooting, systems backups, archiving, and disaster recovery" and 
"providing expert analysis as needed," but it did not provide a further breakdown of the 
Beneficiary's tasks or how he allocated his time. For example, the Petitioner did not indicate what 
specific tasks the Beneficiary performed to oversee these technical activities or indicate how 
frequently he was required to provide "expert analysis" in response to technical or customer service 
issues. Without further explanation, provision of "expert analysis" appears to be a hands-on 
technical responsibility rather than a managerial one. 
The record indicates that the Beneficiary spent another 27% of his time "supervising IT 
infrastructure related works at Datacenters." None of the duties associated with this area of 
responsibility are clearly managerial in nature. The Beneficiary spent 10% of his time designing and 
implementing customized data statistics for clients. While the Petitioner stated that the Beneficiary 
"oversaw and maintained data center at 99% up-time," it did not further elaborate and it appears that 
the Beneficiary himself was responsible for the "IT infrastructure" rather than delegating these tasks 
to the above-referenced "IT team," whose job descriptions do not mention "datacenters." Similarly, 
the Beneficiary's responsibility for overseeing "data center and service consolidation," requiring 
another 10% of his time, is not well explained and does not appear to involve delegation of technical 
work. 
Further, the Petitioner listed the Beneficiary's responsibility for "developing strategies to ensure 
company's growth in the field of hosting virtual servers, anti-spam services" as a separate area of 
responsibility that required 7% of his time, but this duty also relates to overseeing the "in-house 
internet IT center" and cannot be distinguished from the non-managerial "datacenter" -related duties 
described above. 
Another 4% of the Beneficiary's time was allocated to "following up new trends and ideas in IT 
sector," another duty that related to directly managing "server platform technologies," and appeared 
to involve hands-on technical tasks rather than qualifying managerial duties. A related duty was 
ensuring that staff understood and was trained in "emerging technologies," requiring another 4% of 
his time. Finally, we note the Beneficiary's responsibility for "direct[ing] the purchase of all 
software, hardware and other IT supplies" is not clearly managerial absent evidence that someone 
else actually selected and ordered the equipment and supplies. 
7 
.
Matter of E- USA, LLC 
The remainder of the Beneficiary's duties related to establishing departmental pnont1es and 
procedures, controlling costs, overseeing and assigning tasks to IT staff, and staff hiring, tiring, and 
evaluation. Such duties are less ambiguous and include some managerial components, some of 
which are documented by internal emails and correspondence. However, as a whole, the job 
description does not provide sufficient information for us to determine to what extent the Beneficiary 
was able to delegate non-managerial, technical and administrative tasks associated with the foreign 
entity's IT department to his three subordinates. As noted, the Petitioner separated the Beneficiary's 
responsibility for the "IT team" from his responsibility for the "IT infrastructure," suggesting that 
only a portion of the IT department's technical functions are delegated to the subordinates. The 
duties highlighted above involve non-managerial tasks, or tasks that have not been described 
sufficiently to be classified as managerial, and they account for more than half of the Beneficiary's 
time. As such, the job description does not support a finding that the Beneficiary's role was 
primarily managerial. 
On appeal, the Petitioner maintains that the Beneficiary's job description is comparable to that of a 
"Computer and Information Systems Manager" as described in the U.S. Department of Labor's 
(DOL's) O*Net Online occupational definitions. The Petitioner also resubmits an affidavit from 
a consultant and former employee of the North Carolina 
who opines that the Beneficiary's position abroad was comparable to this DOL O*Net 
occupational description. However, as noted above, the Petitioner is required to submit a detailed 
description of the Beneficiary's actual duties within the context of the specific business. 
Comparisons to generic template job descriptions are not persuasive and are insufficient to establish 
the nature of the specific tasks the Beneficiary performed for the foreign entity. Further, we note 
that the DOL occupational classifications are not aligned with the definition of "managerial 
capacity" applicable to this immigrant visa classification. While there are similarities between the 
Beneficiaries duties and those in the referenced DOL classification, the DOL description also 
includes a mix of managerial and non-managerial technical job duties. We are not bound to find that 
a particular position within a given company meets the statutory definition of"managerial capacity," 
because the DOL assigns a managerial job title to the occupational classification. 
The fact that the Beneficiary managed a department does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial capacity within the meaning of section 
10l(a)(44) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" managerial in nature. Sections 101(A)(44)(A) of the Act. While the 
BenefiCiary may have exercised discretion over the day-to-day operations of the foreign entity's IT 
department, the position description alone is insufficient to establish that his actual duties were 
primarily managerial in nature. 
The Petitioner refers to an unpublished decision in support of its claim that it need only establish that 
more than half of the Beneficiary's time is spent performing managerial duties. The regulations do 
not define the term "primarily." Even if we were to interpret "more than half' to meet the threshold 
for performing "primarily" managerial duties, as discussed above, more than half of the 
Beneficiary's time will be allocated to duties that cannot be classified as managerial, either because 
they are hands-on technical tasks, or they are not sufficiently described. In any event, while 8 C.F.R. 
8 
Matter of E-USA, LLC 
§ 103.3(c) provides that our precedent decisions are binding on USCIS, unpublished decisions are 
not similarly binding. 
B. Staffing 
The evidence establishes that the Beneficiary supervised three IT specialists while employed by the 
foreign entity. The Petitioner stated that these employees installed and configured hardware 
operating systems and applications; monitored and maintained computer systems and networks; 
talked clients through actions on the telephone or face-to-face; diagnosed, and solved problems; 
replaced parts; set up user accounts and assisted with password issues; responded to call-outs; tested 
new technology; and performed other assigned duties. Two of the IT specialists have associate 
degrees in computer science, and one has a bachelor's degree in computer science. 
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. The Petitioner has not 
claimed that the Beneficiary manages an essential function, but does state that he supervised 
subordinate personnel. Personnel managers are required to primarily supervise and control the work 
of other supervisory, professional, or managerial employees. Contrary to the common understanding 
of the word "manager," 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." 7 Section 101(a)(44)(A)(iv) 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. 
§ 204.5(j)(2). 
Although the Beneficiary's authority to make decisions regarding personnel actions IS not m 
question, the Director determined that the evidence did not establish that the Beneficiary's 
subordinates were employed as managers, supervisors, or professionals. Specifically, the Director 
found that the IT specialist position appears to require an associate's degree, rather than a bachelor's 
degree, and therefore, it is .not a professional position. 
On appeal, the Petitioner objects to this finding and asserts that the IT specialist is a professional 
position that requires a bachelor's degree or its equivalent. The Petitioner submits a job vacancy 
announcement for an "information management technical specialist" position posted by the U.S. 
Department of State, which required a bachelor's degree with one year of IT work experience or an 
associate's degree in the IT field with two years of IT work experience. The Petitioner asserts that 
7 
In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation"). Section I 0 I (a)(32) of the Act, states that "[t]he term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." Therefore, we must focus on the level of education required by 
the position, rather than the degree held by subordinate employee. The possession of a bachelor's degree by a 
subordinate employee does not automatically lead to the concl'usion that he or she is employed in a professional capacity. 
9 
Matter of E-USA, LLC 
this job vacancy provides evidence that "an individual possessing an Associates degree with two 
years['] experience is equivalent to a Bachelor Degree." We disagree that this single example 
establishes an education and work experience equivalency formula that applies in this proceeding. 
In addition, the Petitioner emphasizes that one of the foreign IT specialists with an associate's 
degree had over six years of professional experience and the other had at least five years of 
experience. The Petitioner notes that, "in the context of the H-1 B classification the USC IS equates 3 
years of progressive experience to one year of college education." Finally, the Petitioner asserts that 
the IT specialist position aligns with the DOL O*Net code for a "network and computer systems 
administrator," a position for which "considerable preparation," usually a bachelor's degree, is 
needed. 
The Petitioner's assertions are not persuasive. The Petitioner has not documented the foreign 
entity's actual requirements for the IT specialist position by providing, for example, a previous job 
posting stating that the position requires either a bachelor's degree or an associate's degree 
combined with a certain number of years of experience. The Petitioner's claim that "most 
employers" require a bachelor's degree for this type of position is not sufficient, especially given 
that two out of the three employees who reported to the Beneficiary did not have a bachelor's 
degree. 
In addition, the Petitioner has not documented the actual educational credentials and experience 
possessed by the foreign IT specialists at the time the foreign entity hired them. Rather, it asserts 
that both of the employees who hold associates degrees had at least six years of experience as of 
2011 or 2012. As the foreign entity states that it hired these employees in 2002 and 2009, the 
Petitioner would need to show that each employee had both an associate's degree and six years of 
experience at the time of their respective dates of hire in order to support its claim that the position is 
professional and requires a bachelor's degree or its equivalent for entry. The Petitioner has not 
submitted resumes or copies of educational credentials for the foreign staff and does not claim that 
either employee had six years of progressive experience in the IT field when hired. 
Therefore, we affirm the Director'sfindirig that the evidence does not establish that the Beneficiary 
primarily supervised a staff of subordinate managers, supervisors, or professionals while employed 
as the foreign entity's IT manager. The Petitioner has not shown that he qualified as a personnel 
manager. 
The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function'' 
within the organization. See section 101(a)(44)(A)(ii) ·of the Act. The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that a beneficiary managed an essential 
function abroad, it must clearly describe the duties he performed in managing the essential function, 
or more specifically, identify the function with specificity, articulate the essential nature of the 
function, and establish the proportion of a beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. § 204.5(j)(5). In addition, a petitioner's description of a 
beneficiary's daily duties must demonstrate that the beneficiary managed the function rather than 
10 
Matter of E-USA, LLC 
perform duties related to the function. See Matter ofZ-A-, Inc., Adopted Decision 2016-02 (AAO 
Apr. 14, 2016). 
In this matter, the Petitioner has not provided evidence that the Beneficiary primarily managed an 
essential function. As discussed, the Beneficiary's position description included a mix of non­
managerial and managerial duties, as well as a number of duties that were described in overly 
general terms. While performing non-qualifying tasks necessary to produce a product or service will 
not automatically disqualify a beneficiary as long as those tasks are not the majority of a 
beneficiary's duties, a petitioner still has the burden of establishing that a beneficiary "primarily" 
performed managerial duties. See section 1 01 (a)( 44) of the Act. 
For the reasons discussed, the Petitioner has not established that the Beneficiary was employed in a 
managerial capacity abroad. 
IV. CONCLUSION 
The Petitioner has not established that it has the ability to pay the Beneficiary's proffered wage or 
that the Beneficiary was employed in a qualifying managerial position .abroad. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-USA, LLC, ID# 559209 (AAO Sept. 14, 2017) 
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