dismissed EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-A- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 30, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which provides information technology (IT) services to the logistics industry, seeks 
to permanently employ the Beneficiary as an applications manager 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 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: (I) the Beneficiary will be employed in the United States in a managerial 
or executive capacity; and (2) the Beneficiary has been employed abroad in a managerial or 
executive capacity. 
On appeal, the Petitioner submits additiona·l evidence and asserts that the Director mistook personnel 
changes for discrepancies, and that the Beneficiary has held a number of managerial positions 
abroad in addition to his current position in the United States. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the tiling 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 atliliate. Section 203(b )(I )(C) of the Act. 
The Form l-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 tor 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. § 204.5G)(3). 
Malter o[C-A- Inc. 
II. DEFINITIONS 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, ti.mction, 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). 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major c'omponent or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide 
latitude in discretionary decision-making; and receives only general supervision or direction from 
higher-level executives, the board of directors, or stockholders of the organization. Section 
101 (a)( 44)(B) of the Act. 
Based on the statutory definitions of managerial and executive capacity, the Petitioner must first 
show that the Beneficiary will perform certain high-level responsibilities. Champion World. Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313,1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary m a 
managerial or executive capacity. 
When examining the managerial or executive capacity of a given beneficiary, we will look to the 
petitioner's description of the job duties. The petition'er's description of the job duties must clearly 
describe the duties to be performed by the beneficiary and indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 204.5(j)(5). Beyond the required description of the 
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. 
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Mauer ofC-A- Inc. 
A. Duties 
The Petitioner initially submitted a list of the Beneficiary's duties, later modified in response to a 
request for evidence (RFE). ln the denial notice, the Director found that several of the listed duties 
are non-qualifying, and that the Petitioner had not shown that the position is primarily managerial. 
On appeal, the Petitioner otTers no specific response to this finding. Instead, the Petitioner repeats 
the first version of the job description and states that the "duties are managerial and ... qualified for 
the EB-1 purpose." Therefore, we will review the job description to determine if the Director's 
concerns were warranted. 
The Petitioner divided the Beneficiary's duties into four categories, and the revised version showed 
the hours devoted to each category per day: 
Management Application/EO! section 
Operational Management 
Strategy & Planning 
Human Resource Management 
3 hours 
3 hours 
I hour 
I hour 
The Petitioner listed several duties within each of the four categories, but did not specify the time 
devoted to the individual duties. We agree with the Director that this omission is significant because 
some of the duties do not appear to be either managerial or executive in nature. Instead, they appear 
to be operational duties relating to software development. Examples include: 
• Develop and communicate training and documentation for end users 
• Develop, distribute and coordinate in-depth end-user reviews .... 
• Evaluate, install, configure and deploy new applications, systems software, products, 
and/or enhancements to existing applications throughout the enterprise 
Some other duties are so vaguely worded that we cannot tell what tasks they entail. Examples 
include "[r]esolve and escalate issues in a timely manner" and "[m]anage the development of team 
members." Specifics are clearly an important indication of whether a beneficiary's duties are 
primarily executive or managerial in nature, otherwise meeting the definitions would simply be a 
matter of reiterating the regulations. Fe din Bros. Co., Ltd v. Sava, 724 f'. Supp. II 03, II 08 
(E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true 
nature of the employment. !d. Therefore, reciting a beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. 
Also, some duties appear to overlap. For instance, "[m]anage and provide direction for the 
application team"; "[d]irect and administrate a contingent of team members"; "[s]upervise and 
manage subordinates"; and "[s]upervise and coordinate monitoring daily operation of team 
members." For another example, the Petitioner did not explain the difference between "allocate 
assignments" and "[p]lan and organize worktlows." 
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Mauer o(C-A- Inc. 
A beneficiary's authority over a component of a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of section I 0 I (a)( 44) of the Act. By statute, eligibility for this classification requires that 
the duties of a position be "primarily" of a managerial or executive nature. Section 10l(a)(44).(A) 
and (B) of the Act. In this case, while the Beneficiary may exercise discretion over the Petitioner's 
day-to-day operations and possesses the requisite level of authority with respect to discretionary 
decision-making, the position description alone is insufficient to establish that his actual duties, as of 
the date of filing, would be primarily managerial or executive in nature. 
For the reasons explained above, we agree with the Director's unrebutted finding that the 
Beneficiary's job description does not show that the Petitioner seeks to employ him in a primarily 
managerial or executive capacity . 
. B. 'Statling 
If stafting levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, we take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. See section I 01 (a)(44)(C) of the Act. 
The Director found that the Petitioner had provided inconsistent descriptions of the Beneficiary's 
subordinate staff. On appeal, the Petitioner states that frequent personnel turnover is common in its 
industry. 
At various times in the proceeding, the Petitioner provided different information about the 
Beneticiary's organizational unit, including the Beneficiary's title and the names and titles of the 
Beneficiary's subordinates. The discrepancies themselves do not necessarily raise significant 
questions of credibility; the job titles vary but all fall within a narrow range, and the record does not 
show major variations in the number of subordinates. 
Nevertheless, unresolved issues remain. In the RFE, the Director requested "[c]opies of the payroll 
summary for the beneficiary and his or her subordinates." The Petitioner submitted a list of names, 
titles, and salaries, under the heading "Payroll Summary." A payroll summary is a specific type of 
document, compiling payroll information over a defined span of time; a list of names labeled 
"Payroll Summary" does not meet this description. The Petitioner did not submit copies of tax or 
payroll records to directly corroborate the employment of those subordinates or show their hiring 
dates. On appeal, the Petitioner submits copies of quarterly tax returns which show the total number 
of employees at a given time, but do not identify the individual employees. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10l(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 
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Maller of C-A-Ine. 
acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional." Section l0l(a)(44)(A)(iv) of the Act; 8 C.F.R. 
§ 204.5(j)(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(j)(2). 
To establish that the Beneficiary is a personnel manager, the Petitioner must show that the 
Beneficiary's claimed subordinates are managers, supervisors, or professionals. The Petitioner 
asserts that the Beneficiary "has supervised managers" and "has not been a first line supervisor," but 
the record is inconsistent with respect to the hierarchy, if any, among the Beneficiary's claimed 
subordinates, and therefore the Petitioner has not established how many, if any, of the subordinates 
have supervisory or managerial authority over others. The organizational chart submitted at the time 
of filing simply listed four subordinates under the Beneficiary's name, without titles or any 
indication of a supervisory or managerial hierarchy among the four employees. Subsequent 
reorganizations of the company cannot establish eligibility at the time of filing. See 8 C.F.R. 
§ l03.2(b)(l); see also Mauer ofKatigbak, 14 I&N Dec. 45,49 (Reg'! Comm'r 1971). 
The earliest subordinate job descriptions in the record are in the Petitioner's RFE response. The 
Petitioner identified one worker variously as a "system manager" and "application engineer," while 
the other four were "ED! specialists." One of the ED! specialists earns a higher salary than the 
system manager, and the system manager's job description did not list supervisory or managerial 
duties. Rather, every job description focused on various IT services, such as "Requirement 
Analysis," "ED! Troubleshooting," and "Check GIS-UBIZ2 server and related processes." 
To detennine whether the Beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the tield of 
endeavor, 1 The Petitioner contends that "all of [the Beneficiary's] subordinates hold [a] BA degree 
at least," but the Petitioner has not submitted the documentation necessary to substantiate this claim. 
As noted previously, the record lacks sufficient documentation to confirm that the Petitioner 
employs the named subordinate employees at all. Many lT occupations qualify as professions, but 
the Petitioner did not provide sufficient corroborating evidence to establish that the Beneficiary's 
claimed subordinates are professionals, or that the Beneficiary primarily oversees their work rather 
than performs operational tasks himself. 
The Petitioner also claimed that the Beneficiary is a function manager, but the Petitioner has not 
articulated a specific function that the Beneficiary will manage. 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 
1 C/ 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a United States 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." 
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Mauer ofC-A- Inc. 
section I 01 (a)(44)(A)(ii) of the Act. If a petitiOner claims that a beneticiary will manage an 
essential function, it must clearly describe the duties to be performed in managing the essential 
function. In addition, the petitioner must demonstrate that: 
(I) the function is a clearly detined activity; (2) the function is "essential," i.e., core 
to the organization; (3) the beneficiary will primarily manage, as opposed to fJeljiJrm, 
the function; ( 4) the beneficiary will act at a senior level within the organizational 
hierarchy or with respect to the function managed; and (5) the beneticiary will 
exercise discretion over the function's day-to-day operations. 
Malter ofG-Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). In this matter, the Petitioner has 
not described or provided sufficient evidence that the Beneficiary manages an essential function. 
The statutory detinition of the term "executive_ capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Under the statute, a beneticiary 
must have the ability to "direct the management" and "establish the goals and policies" of that 
organization. Inherent to the detinition, the organization must have a subordinate level of 
managerial employees for a beneticiary to direct and a beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as an owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction trom higher level executives, the board of directors, or stockholders of the 
organization." Section IOI(a)(44)(B) of the Act. 
The Petitioner asserts on appeal that the Beneticiary "has supervised managers," but the record 
provides insufficient support for this claim. As discussed above, the record contains minimal 
. evidence regarding the Beneticiary' s subordinates, and the Petitioner's claims have changed with 
each submission. Therefore, the Petitioner has not established that the Beneficiary is an executive 
by virtue of directing the management of his department. (The record does not consistently show 
that the department has any management between the Beneficiary and the tront-line subordinate 
workers.) 
Based on the deticiencies and inconsistencies discussed above, the Petitioner has not established that 
it will employ the Beneticiary in a managerial or executive capacity in the United States. 
IV. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE CAPACITY 
lf the Beneficiary is already in the United States working for the foreign employer or its subsidiary 
or atliliate, then the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) requires the Petitioner to submit a 
statement from an authorized official of the petitioning United States employer which demonstrates 
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Maller of C-A-Ine. 
that, in the three years preceding entry as a nonimmigrant, the Beneficiary was employed by the 
entity abroad for at least one year in a managerial or executive capacity. 
A. Dut.ies 
The Beneficiary traveled to the United States to work for the Petitioner in July 20 13. Therefore, the 
Beneficiary must have accumulated at least one continuous year of qualifying managerial or 
executive experience abroad between July 2010 and July 2013. The Petitioner listed "various 
professional and managerial positions" that the Beneficiary held abroad, but the Beneficiary held 
only two of those positions during the statutory three-year period. Specifically , the Petitioner stated 
that the Beneficiary was "Project Manager of from 05/2010 
to 06/20 12," before moving to his "present position of Team Manag er of Business Relation 
Management Team from 06/20 12." The Petitioner did not provide any further information about the 
position that the Beneficiary held from 2010 to 2012. 
The Petitioner described the Beneficiary ' s responsibilities as "Team Manager of Business Relation 
Management Team." The Petitioner stated that some of the Beneficiar y's duties revolved around the 
"[m]anagement of total of four (4) subordinate employees in managerial and professiona l 
position[s]." These duties included human resources functions such as hiring , training, and 
evaluations, and allocating work assignments. 
Aside from personnel duties , the Beneficiary ' s other responsibility was "Management of Sale 
Application Development Administration , Quality Assurance and Business Analysis." The listed 
duties emphasized the Beneficiary 's areas of authority rather than specific tasks that the Beneficiary 
performed while exercising that authority. Examples include the following: 
• Set and execute the project guideline s and compan y policie s. 
• Interact with all levels of leadership and management with the IT organization. 
• Analyze and prioritize user service request. 
In the RFE, the Director asked for additional details about the Beneficia ry' s claimed work abroad. 
In response, the chief executive officer of the foreign entity stated that the Beneficiar y "served as a 
team manager of Business Relation Management Team ... to the end of July 2013 for 3 years." The 
official stated that the Beneficiary ' s "major job duty ... was to manage [the] company's planning 
policies , procedures and communication." The official referred to "the attached documents of [the 
Beneficiary's] and his subordinates' job duties," but the accompanying documents relate to positions 
on the applications team at the petitioning U.S. entity , not the foreign comp any's business relations 
management team . The Petitioner did not submit any further infonnation about the nature of the 
Beneticiar y's work abroad . 
In the denial notice, the Director found that the Petitioner had submitted confl icting information 
about the Beneficiary's employment on the business relation management team . The Petitioner had 
initially stated that the Beneficiary joined that team in June 2012, which contr adicted the statemen t 
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Mauer ofC-A- Inc. 
by the official of the foreign entity that the Beneficiary worked there "for 3 years" until "the end of 
July 2013." The Director also found that the Beneficiary did not submit "sufficient details" to show 
that the Beneficiary's duties abroad were primarily managerial. 
On appeal, the Petitioner repeats· the employment history claimed in the Petitioner's initial letter, 
including the assertion that the Beneficiary had served as "Team Manager of Business Relation 
Management Team from 06/2012." The Petitioner does not acknowledge or explain the conflicting 
assertion that the Beneficiary held that position for three years, or submit documentary evidence 
(such as payroll records) to resolve the discrepancy. 
The Director also found that the Petitioner had not submitted enough details about the Beneficiary's 
duties abroad. The Director noted that the letter from the foreign entity did not corroborate or 
expand upon the job description that the Petitioner had provided initially. Apart from repeating past 
assertions, the Petitioner's statement on appeal does not address this finding. 
The submitted foreign job description indicates that the Beneficiary has authority over subordinates, 
but provides few details about the duties he performed while exercising that authority. The 
Petitioner does not address this deficiency on appeal. The Petitioner states that the Beneficiary "had 
been performing the following duties," but no duties follow that statement apart from supervision of 
tour claimed subordinates. The lack of detail is particularly significant in combination with the 
inconsistent claims of when the Beneficiary first started working in the position. These two factors, 
in combination, prevent a finding that the Petitioner has met its burden of proof with respect to the 
Beneficiary's claimed foreign employment. 
B. Staffing 
An organizational chart showed four subordinates below the Beneficiary: an application support 
manager, who supervised an application analyst; and a logistics application manager who supervised 
a logistics IT analyst. The Petitioner listed the responsibilities of those positions, excerpted below: 
• Application Support Manager 
Lead team members in documenting problems of solutions in· the IT database 
Identify inefficiencies 
Research issues and propose solutions 
• Application Analyst 
Analyze and operate Sales Application Development Administration 
Configure, test, and troubleshoot system deliveries 
Identify and improve operating procedures 
Monitor applications status 
Refer problems to technicians 
• Logistics Application Manager 
Responsible for IT application activities to support logistics, shipping and 
forwarding operations 
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Maller of C-A-Ine. 
Develop and manage application modules 
Supervise and train staff 
Coordinate work development with other application teams 
• Logistics IT Analyst 
Prepare or revise standard operating procedures 
Identify developments in logistics planning or execution 
Develop or maintain payment systems 
Analyze flows, costs, and processes 
Maintain and interpret logistics-related data 
We note that the job description for the logistics IT analyst is virtually identical to portions of the 
generic job description for logistics analysts on O*NET, an employment information database 
sponsored by the Department of Labor. 2 Using an existing generic template does not show that the 
duties of the position match those found in the template. Also, the .job descriptions lor the two 
individuals identified as managers each imply or refer to multiple subordinates, but the 
organizational chart showed only one subordinate for each of them. 
In the RFE, the Director requested additional information and evidence regarding the staffing of the 
foreign organizational unit that had employed the Beneficiary. The Petitioner's response to the RFE 
contained no new information or evidence about the staffing of the foreign entity. A legend on the 
"payroll summary" reads "[a]s of2016 when Beneficiary worked tor foreign organization," but that 
summary showed names and job titles relating to Beneficiary's position in the U.S. rather than 
abroad, and the Beneficiary was in the United States in 2016. 
In the denial notice, the Director found that the Petitioner had not submitted evidence to show that 
the Beneficiary's subordinates abroad "were professionals that require at least a baccalaureate 
degree." On appeal, the Petitioner repeats the claim that the Beneficiary supervised the application 
support manager and the logistics application manager, each of whom supervised a subordinate of 
their own. 
The Beneficiary's authority over two supervisors would satisfy the second prong of the detinition of 
managerial capacity, regardless of whether the lowest-level employees were professionals, or 
whether the individuals identified as managers were, in fact, managers. But the level of the 
Beneficiary's authority is not sut11cient, by itself, to establish a managerial or executive capacity. 
The Petitioner must also show that the Beneficiary primarily acted as a manager or executive. As 
explained above, the Petitioner has not provided enough details about the Beneficiary's position 
abroad to show that his authority over two supervisors and two lower-level workers was sufficient to 
make him primarily a manager. Also, there is further doubt as a result of the unresolved discrepancy 
in the Beneficiary's employment dates and the lack of evidence that the foreign company employed 
the identified subordinates at all. 
2 The description can be found at https://www.onetonline.org/link/summary/13-1 081.02 (last visited May 16, 20 18). 
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Malter ofC-A- Inc. 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary was employed 
abroad in a managerial or executive capacity. 
V. CONCLUSION 
The Petitioner has not submitted sufficient information and evidence to establish that the Beneficiary 
has been employed abroad, and will be employed in the United States, in a primarily managerial or 
executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of C-A-Ine., JD# 1166085 (AAO May 30, 2018) 
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