dismissed EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Z- CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 16, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an information technology services company, seeks to permanently employ the 
Beneficiary as its president 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 )( 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 Texas Service Center denied the petition concluding that the Petitioner did not 
demonstrate that: (1) it would employ the Beneficiary in the United States in a managerial or executive 
capacity; (2) the Beneficiary was employed abroad in a managerial or executive capacity prior to his 
entry to the United States as a nonimmigrant; (3) it is doing business in the United States; (4) the 
Beneficiary's foreign employer continues to do business in the United Kingdom; and (5) it has the 
ability to pay the Beneficiary's proffered wage. 
On appeal , the Petitioner submits supplemental evidence, and contends that the Director misconstrued 
and overlooked relevant evidence that was sufficient to establish eligibility for the benefit sought. The 
Petitioner further asserts that the Director "applied standards not required by law" and failed to apply 
the preponderance of the evidence standard. 
Upon de nova review, we will withdraw the Director's determinations that the Petitioner did not 
establish that it is doing business in the United States or that the Beneficiary's foreign employer is 
doing business abroad. 1 However , we find that the Petitioner has not established that it will employ 
the Beneficiary in a managerial or executive capacity in the United States . Therefore, we will dismiss 
the appeal. Because of the dispositive effect of this finding, we will reserve the two remaining issues. 
1 The Petitioner submitted copies of its federal tax returns , signed business contracts, invoices, bank statements , monthly 
state sales and use tax returns , evidence of wages paid to employees and contractors , and other relevant evidence sufficient 
to establish that it had been doing business in the United States for at least one year at the time of filing the petition . See 
8 C.F.R. § 204.5(j)(3)(i)(D). Further, the Director's determination regarding the foreign entity 's ongoing business 
operations was not supported by an adequate analysis of the submitted evidence . The Petitioner has supplemented the 
record on appeal and it now contains sufficient evidence to establish that the foreign entity continues to do business as 
defined at 8 C.F.R. § 204.5(j)(2). 
Matter of Z- Corp. 
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)(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). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The issue to be addressed is whether the Petitioner established that it will employ the Beneficiary in a 
managerial or executive capacity in the United States. 
"Managerial capacity" means an assignment within an organization in which the 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, 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 
10l(a)(44)(A) of the Act. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component 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 10l(a)(44)(B) of the Act. 
When assessing the managerial or executive nature of an offered position, we examine a petitioner's 
description of the job's duties. See 8 C.F.R. § 204.5(i)(5) (requiring that a petitioner "clearly describe 
the duties to be performed"). 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 the 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. 
A. Job Duties 
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, 
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Matter of Z- Corp. 
940 F .2d 1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also 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. 
In a statement submitted in support of the petition, the Petitioner provided a broad overview of the 
Beneficiary's responsibilities as its president, as follows: 2 
35% Maintain primary and ultimate responsibility for the establishment and 
performance of the organization's North American activities; 
10% Manage the financial and physical resources in the United States; 
1 % Act as Chairman of [the Petitioner's] Board; 
5% Ensure [the Petitioner's] legal, regulatory, and fiscal compliance; 
5% Define and monitor risk profile and ensure asset protection; 
10% Formulate policies, strategies, and business plans; 
4% Continuously review business strategy in line with changing market conditions; 
0% Submit annual business plans and forecasts for overseas Board approval; 
10% Represent and promote the company with suppliers, clients, public bodies, 
external advisers, regulators, and auditors, in the media and in the community; 
5% Supervise and manage the human resources function including contracting, 
remuneration, training, and payroll; 
5% Act as Chair of the Management Committee, comprising of the VP Operations, 
and lead Contracted Agents; and 
10% Supervise the technical team to ensure system performance and customer 
support goals are exceeded. 
In a request for evidence (RFE), the Director advised the Petitioner that this list of responsibilities was 
too general and requested an explanation of the specific daily duties associated with each area of 
responsibility and the amount of time to be spent on each duty. In response, the Petitioner submitted 
the following revised description of the Beneficiary's responsibilities: 
15% Supervises VP Operations 
5% Supervises Sales Channel Partners 
15% Supervises.._.. ___ __.(research, general office duties, sales leads, content) 
20% Financial management (full discretion) 
5% HR management including hiring/firing (sole responsibility) 
5% Business and Funding Planning, Strategy & Goal Setting 
5% Policy and Procedures 
5% Directing the Sales Function & Delegation of Sales Leads to VP Operations 
5% Authorizing Sales Proposals 
5% Legal & Fiduciary Compliance (includes Board/Parent Co. duties) 
5% Community Visibility & Networking 
5% General decision making 
2 The Petitioner has provided the percentages attributed to each area of responsibility on appeal, but did not include them 
when it initially submitted this list of duties. 
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Matter of Z- Corp. 
The information provided by the Petitioner in response to the RFE did not clarify or provide more 
specificity to the original duties, but rather introduced new generic duties to the job description. The 
regulations require that the Petitioner "clearly describe the duties to be performed," and it cannot meet 
its evidentiary burden by explaining the Beneficiary's responsibilities with overly broad language such 
as "policy and procedures," "strategy and goal setting," "community visibility," "business and funding 
planning," "financial management," and "general decision makinr' Further, it is unclear how the 
Beneficiary would spend 20% of his time supervisin~..__ ___ ____,and the Petitioner's sales channel 
partners given that the Petitioner paid $0 to its claimed sales channel partner in 2018 and only $671 to 
I Is company. Finally, the record contains two different breakdowns of the Beneficiary's 
job duties that are both claimed to require 100% of his time with no explanation from the Petitioner 
as to how the two lists should be reconciled. 
The fact that the Beneficiary will manage or direct a business does not necessarily establish eligibility 
for classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of section 101 (a)( 44) of the Act. Therefore, conclusory assertions regarding the 
Beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or 
regulations does not satisfy the Petitioner's burden of proof Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Assocs., Inc. v. Meissner, 
1997 WL 188942 at *5 (S.D.N.Y.). We agree with the Director that the Petitioner did not submit a 
sufficient description of the Beneficiary's actual duties to meet its evidentiary burden, either at the 
time of filing or in response to the RFE. 
On appeal, the Petitioner revisits the initial position description in an attempt to clarify the nature of 
the Beneficiary's duties. However, the new information does not provide any additional insight into 
what the Beneficiary would actually do a day-to-day basis as the president of the Petitioner's three­
person IT services company. For example, the Petitioner states that the Beneficiary spends 35% of 
his time maintaining "primary and ultimate responsibility for the establishment and performance of 
the organization's North American activities." However, the Petitioner's new accompanying 
explanation of "what the job duties mean and how this duty actually happens" simply paraphrases the 
statutory definition of "executive capacity." Specifically, the Petitioner states that the Beneficiary's 
"ultimate authority" over the company's activities means that he has "complete autonomy and 
complete control over the day to day management of the company, its policies, its strategy, its goal 
setting, hiring and firing and supervision of professional employees, decision making, and 
responsibility for the company's performance," with minimal direction from the board or stockholders. 
The Petitioner has once again focused on the level of the Beneficiary's authority without providing 
the required detailed information regarding his actual duties. 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. Fedin Bros., 724 F. 
Supp. at 1108, aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Similarly, the Petitioner states that the time the Beneficiary spends on supervising the technical team 
"to ensure system performance and customer support goals are exceeded" means that he is "ultimately 
responsible for the success of the company, which means client satisfaction and in tum this relies on 
excellent technical performance." This statement does not elaborate on the Beneficiary's actual job 
duties. The Petitioner goes on to elaborate on the hierarchy and qualifications of its technical staff but 
this information does not assist in establishing how the Beneficiary spends this portion of his time. 
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Matter of Z- Corp. 
Finally, the expanded job description submitted on appeal indicates that the Beneficiary himself issues 
sales invoices, purchases equipment, pays invoices, compiles and submits sales and use tax returns, 
and writes sales proposals, duties which have not been established as managerial or executive in 
nature. Although the Petitioner indicates that the Beneficiary relies heavily on subordinates and 
contractors to assist him with gathering information needed to perform these duties and related 
activities pertaining to the company's sales, financial, and administrative functions, the company's 
use of certain contractors is not well-documented in the record, as we will discuss below. 
Overall, while the Beneficiary may exercise discretion over the Petitioner's day-to-day operations and 
possess the requisite level of authority with respect to discretionary decision-making, the position 
descriptions alone are insufficient to establish that his actual duties would be primarily managerial or 
executive in nature. 
B. Staffing and Organizational Structure 
If staffing 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 101 (a)( 44 )( C) of the Act. 
At the time of filing in September 2018, the Petitioner stated that it had four employees, including the 
Beneficiary. An organizational chart dated "August 2018" indicated that those employees included 
the Beneficiary, a "VP Operations," a technical manager, and a support technician. The Petitioner 
identified the subordinate staff as full-time em lo ees. The organizational chart also included two 
contracted agents t I and , a "contracted agent" entity t . I 
including and three "sub-agents"), and "contracted corporate channel 
partners".__ ______ ___, 
The Petitioner provided evidence of 2018 wages paid to its VP Operations and technical manager, but 
did not support its claim that it employed the full-time support technician at the time of filing. That 
individual I I was paid $5974 in nonemployee compensation in 2018, reported on IRS Form 
1099. The Petitioner has not mentioned him on appeal and it is unclear if he continues to provide 
services to the company. 
The Petitioner describes! I andl las "independent sales lead contractors" who 
report directly to the Beneficiary. In 2018, the Petitioner made one payment of $1000 tol I 
and four payments of $500 each td I 
In response to the RFE, the Petitioner identified! I as one of the Beneficiary's direct reports 
and noted that he allocates 25% of his time to sales channel management, 20% of his time to funding 
research, and liaison, 15% of his time to sales collateral and promotion, 15% of his time to "general 
administration," and 25% of his time to market and competitor research. In addition, on appeal, the 
Petitioner states that I I supports the sales and marketing function, prepares marketing 
materials, visits prospective clients, compiles financial information, prepares invoice folders for the 
3 A reference letter submitted on appeal indicates that I lis also the Petitioner's client. As noted, the 
Petitioner did not provide evidence of payments it made~t-o~l ----~li~n exchange for that company's services. 
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Matter of Z- Corp. 
Beneficiary and supervises the sales lead contractors. However, the record does not substantiate the 
claimed nature and scope ofl Is day-to-day services. As noted above, the Petitioner paid 
I Is company only $671 in 2018. 
The Petitioner made additional payments to three contractors in 2018 11 and 
.__ __________ _,, but the Petitioner did not include these individuals or entity on its 
organizational charts or claim that they were providing services to the company at the time of filing. 
Finally, on appeal, the Petitioner identifies two individuals I , I and I I who 
appear to be based in the United Kingdom and are claimed to act as advisors on high level technical 
design and more complex technical issues related to the Petitioner's data center systems and 
performance. The Petitioner has not provided evidence of payments to them. 
Overall, the Petitioner has documented its employment of two subordinate employees and a few 
contractors whose services to the comrny are provided on a limited basis. The Petitioner provided a 
copy of its contract with I but did not provide other contracts establishing the nature and 
scope of services that its contractors and commissioned staff provide. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10l(a)(44)(A) of the Act. 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." 4 Id. 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). 
Here, the Petitioner has not shown that the two full-time payroll employees supervised by the 
Beneficiary would be acting in a managerial, supervisory, or professional capacity. While both 
employees (the VP Operations and technical manager) have managerial job titles, the record 
demonstrates that they both perform technical customer support and other technical duties, with the 
VP operations having nominal supervisory functions stated to require only 15% of his time. The 
submitted position descriptions indicate that the Petitioner prefers, but does not require, a bachelor's 
degree, for these technical positions, and, based on the employees' resumes, neither one has a 
bachelor's degree. The Petitioner has not provided job duty descriptions or position requirements for 
its various contracted and commissioned staff 
4 To determine 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 IO 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 conclusion 
that an employee is employed in a professional capacity. 
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Matter of Z- Corp. 
The Petitioner also 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 section 101(a)(44)(A)(ii) of the Act. If a petitioner claims that a beneficiary 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 "(l) the function is a clearly 
defined activity; (2) the function is 'essential,' i.e., core to the organization; (3) the beneficiary will 
primarily manage, as opposed to perform, 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 beneficiary 
will exercise discretion over the function's day-to-day operations." Matter of G- Inc., Adopted 
Decision 2017-05 (AAO Nov. 8, 2017). 
On appeal, the Petitioner emphasizes that the Beneficiary "is spending his time developing business 
and the reputation of the company" as a "dealmaker, a relationship builder and a client relations 
expert" while his staff execute the provision of the company's IT services. The Petitioner maintains 
that "[t]his is the essence of being an 'executive' or being a 'manager' including of a function." 
However, the Petitioner has not established that the Beneficiary primarily manages the company's 
business development or client relations function, rather than performing this function, nor does it 
further develop its claim that the Beneficiary qualifies as a function manager. 
The statutory definition 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. Section 101(a)(44)(B) of the Act. Under the statute, 
a beneficiary must have the ability to "direct the management" and "establish the goals and policies" 
of that organization. Inherent to the definition, the 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 the owner or sole managerial employee. 
Here, while the Beneficiary functions at the senior most level in a three-person office, the Petitioner 
has not shown how its employees, contractors and commissioned agents are able to relieve him from 
significant involvement in the company's day-to-day operations, specifically those related to client 
relations, business development, sales, administrative, and financial matters, such that he is able to 
focus primarily on higher-level executive duties. 
The Petitioner correctly observes that we must take into account the reasonable needs of the 
organization and that a company's size alone may not be the only factor in determining whether the 
Beneficiary is or would be employed in a managerial or executive capacity. See section 101(a)(44)(C) 
of the Act. However, it is appropriate to consider the size of the petitioning company in conjunction 
with other relevant factors, such as the absence of employees who would perform the non-managerial 
or non-executive operations of the company. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The record establishes that the Beneficiary is not involved in performing technical tasks, such as 
migrating customer data to the Petitioner's data center or resolving customer support tickets. 
However, the Petitioner has not demonstrated that the Beneficiary is relieved from involvement in 
7 
Matter of Z- Corp. 
performing other non-qualifying duties necessary for the company's day-to-day operation, including 
sales, marketing, and other business development tasks, as well as routine financial and administrative 
matters. The Petitioner indicates that it has an accountant for certain functions and it has made some 
payments to commissioned staff who are tasked with finding sales leads, but the record demonstrates 
that the Beneficiary himself is responsible for developing those sales leads, writing proposals, closing 
sales and follow-up with clients, as well as performing duties such as purchasing new equipment, 
paying invoices, issuing invoices and other administrative matters. Although the Petitioner indicates 
on appeal thatl I assists the Beneficiary in performing many of these duties, the record does 
not support a finding that this individual is contributing to the company's day-to-day operations given 
the minimal compensation paid to his company. 
While performing non-qualifying tasks will not automatically disqualify a beneficiary as long as those 
tasks do not require a substantial portion of the beneficiary's time, a petitioner still has the burden of 
establishing that a beneficiary will "primarily" perform managerial or executive duties. See section 
101 (a)( 44) of the Act. The Petitioner argues that the regulations do not require it to explain the amount 
of time the Beneficiary will allocate to specific tasks. However, the Director's request that the 
Petitioner specify how the Beneficiary allocates his time between qualifying and non-qualifying tasks 
is supported by the word "primarily" in the statutory definition and by case law. See, e.g., IKEA US, 
Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999); Republic of Transkei v. INS, 923 
F.2d 175, 178 (D.C. Cir. 1991) (stating that a petitioner bears the burden of documenting what portion 
of the beneficiary's duties will be managerial or executive and what proportion will be non-managerial 
or non-executive). The record reflects that the Beneficiary is required to perform a number of non­
qualifying duties in addition to his claimed managerial and executive tasks; therefore, it is critical that 
the Petitioner document what portion of time he spends on sales, administrative and routine financial 
matters where he has limited support from subordinates. 
We acknowledge that the Petitioner submitted a number of reference letters from clients who state that 
they consider the Beneficiary to be a manager or executive and who attest to the importance of the 
services that the company provides to their small and medium-sized businesses and organizations. 
However, for the reasons discussed above, the Petitioner has not established that the Beneficiary will 
perform primarily managerial or executive duties consistent with section 10l(a)(44) of the Act. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofZ- Corp., ID# 6063112 (AAO Sept. 16, 2019) 
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