dismissed EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-E-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV . 6, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a company operating an internet cafe, seeks to permanently employ the Beneficiary as 
an "IT Manager" under the first preference immigrant classification for multinational executives or 
managers. 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 on multiple grounds concluding that 
the Petitioner did not establish that: (1) it had a qualifying relationship with the Beneficiary's foreign 
employer; (2) the Beneficiary's U.S. job offer was a bona fide; (3) the Beneficiary would be employed 
in a managerial or executive capacity in the United States; and (4) the Beneficiary had been employed 
in a managerial or executive capacity in his former position abroad . 
The Petitioner later filed a motion to reopen and a motion to reconsider with the Director. The Director 
granted the motion to reopen, but affirmed the previous denial. 1 The matter is now before us on appeal. 
On appeal, the Petitioner asserts that submitted corporate documentation specific to it and the foreign 
employer demonstrates that there is common ownership between the entities. The Petitioner further 
asserts that the Beneficiary's U.S . and foreign duties and provided organizational charts for each entity 
establish that she acted in a managerial capacity abroad and that she would be employed m a 
managerial capacity in the United States . 
Upon de nova review, we will dismiss the appeal. 
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 
1 In a second decision dated April 16, 2019 the Director addressed each of the previous grounds for denial set forth in the 
initial decision, except it did not address whether the Beneficiary had received a bona fide job offer. As such, we will not 
address this issue in our decision. 
Matter of M-E-, Inc. 
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(i)(3). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The first issue we will address is whether the Petitioner established that the Beneficiary would act in 
a managerial capacity in the United States. The Petitioner does not claim that the Beneficiary would 
be employed in an executive capacity. Therefore, we restrict our analysis to whether the Beneficiary 
would be employed in a managerial capacity. 
"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, 8 U.S.C. § l 10l(a)(44)(A). 
When examining the managerial capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. The petitioner'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 
capacity. 8 C.F.R. § 204.5(i)(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, its staffing levels, and its organizational structure. 
A. Duties 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary was performing certain high-level responsibilities. Champion World, Inc. v. INS, 940 
F.2d 1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the 
Beneficiary was primarily engaged in managerial duties, as opposed to ordinary operational activities 
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Matter of M-E-, Inc. 
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. 
The Petitioner stated that it operates an "internet coffee shop" and indicated that the Beneficiary would 
act as an IT manager responsible for "preparing daily reports, overseeing the employees, maintaining 
the inventory and equipment and providing excellent customer service." In addition, the Petitioner 
stated that the Beneficiary "assisted in preparing the advertising and marketing events for the Internet 
Cafe to build a customer base, generate sales and produce a cash flow." 
The Petitioner also provided some of the following duties for the Beneficiary: 
• Analyzes business processes or takes business requests and plans/develops systems and 
software, 
• Provides business leadership for technology initiatives and related project management 
activities, 
• Anticipates implementation obstacles and develops strategies to overcome them with 
senior leadership, 
• Defines initiative success criteria, both qualitative and quantitative, 
• Ensures careful IT budget management, including reporting, analysis, and 
recommendations to program, 
• Helps identify technology solutions, 
• Researches/recommends hardware and software purchases, 
• Manages projects as assigned and facilitates them to successful completion, 
• Plans, develops and organizes feedback mechanisms to assure quality control, 
• Works to improve systems already in use and conducts technical research on system 
upgrades to determine feasibility, cost, time required and compatibility with current 
systems, 
• Makes suggestions on improvements to ensure technology is being folly utilized, 
• Improves processes throughout the organization to increase the level and quality of 
service, 
• Sets up new users on all centrally managed IT tools and provides direct support to 
customers, 
• Identifies policies and procedures impacted by changes in technology solutions and 
works with employees to ensure changes are communicated and put in place, 
• Prepares specifications and process flows for vendors or internal work to commence, 
• Helps setup and provide training where necessary to end users, 
• Works as a team member with other technical staff to ensure connectivity and 
compatibility between systems, and 
• Promotes vision, mission and values of the Petitioner. 
The Petitioner has submitted a duty description for the Beneficiary indicating that she would likely be 
primarily engaged in non-qualifying operational duties. For instance, although the Petitioner provided 
general percentages of time the Beneficiary devoted to groups of the tasks listed above, non-qualifying 
operational tasks related to the direct provision of services to customers were included within each 
general category. The Beneficiary's duties reflect that she would be responsible for analyzing business 
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Matter of M-E-, Inc. 
processes and taking business requests, planning and developing software, identifying technology 
solutions, and researching and recommending hardware and software purchases to customers. 
Likewise, it stated that the Beneficiary would work to improve systems already in use, conduct 
technical research on system upgrades, make suggestions to customers on technology improvements, 
set up new users on information technology tools, provide "direct support to customers," prepare 
specifications and process flows for vendors, setup and provide training to end users, and ensure 
connectivity and compatibility between systems. 
Whether the Beneficiary is a managerial employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" managerial. See sections 101(a)(44)(A) of the Act. 
Here, the Petitioner does not sufficiently document what proportion of the Beneficiary's duties would 
be managerial functions and what proportion would be non-qualifying. Although the Petitioner lists 
some managerial tasks within the Beneficiary's duty description, it also provides a substantial amount 
of tasks throughout her duty description indicating that she would be primarily involved in providing 
information technology services to clients. For this reason, we cannot determine whether the 
Beneficiary is primarily performing the duties of a manager. See IKEA US, Inc. v. US. Dept. of 
Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Furthermore, the Petitioner submits few examples and little supporting documentation to substantiate 
the qualifying managerial duties the Beneficiary would perform on a daily basis. To the extent the 
Beneficiary's duty description references potential qualifying duties, they are generic, and could apply 
to any manager acting in any business or industry and they do not provide insight into the actual nature 
of her role. For instance, the Petitioner did not detail or document the technology initiatives or project 
management activities the Beneficiary would lead, strategies she would develop to overcome 
obstacles, "initiative success criteria" she would define, or budget management he would oversee. In 
addition, the Petitioner did not provide sufficient detail or documentation to corroborate the vendors 
the Beneficiary manages, "feedback mechanisms" related to quality control she organized, 
organizational processes she improved, policy and procedure changes she communicated or put in 
place, or visions, missions, or values she promoted. 
In fact, it is noteworthy that the Beneficiary currently resides in the United States and that she was 
previous approved for an L-lA nonimmigrant intracompany transferee visa2; however, the record 
includes no specific examples or documentation to substantiate her performance of qualifying 
managerial duties or her delegation of non-qualifying duties to subordinates. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily managerial in nature, otherwise 
meeting the definitions would simply be a matter ofreiterating the regulations. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
Even though the Beneficiary holds a senior position within the organization, the fact that she will 
manage or direct the business does not necessarily establish eligibility for classification as a 
multinational manager within the meaning of section 101(a)(44)(A) of the Act. The Beneficiary may 
exercise discretion over the Petitioner's day-to-day operations and possess the requisite level of 
2 United States Citizenship and Immigration Service (USCIS) records reflect that an L-IA nonimmigrant intracompany 
transferee visa was approved on behalf of the Beneficiary from December 9, 2016, to August 2, 201 7. The current Form 
I-140 petition was filed on December 26, 2017. 
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Matter of M-E-, Inc. 
authority with respect to discretionary decision-making; however, the position description alone is 
insufficient to establish that his actual duties would be primarily managerial in nature. 
B. Staffing and Function Manager 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose 
and stage of development. See section 101 (a)( 44 )( C) of the Act. 
On the Form I-140, the Petitioner stated that it had five employees as of the date the petition was filed. 
The Petitioner provided an organizational chart reflecting that the Beneficiary reported to a director 
and that she supervised a technician and three "part-time assistants." 
As previously discussed, the Petitioner asserts that the Beneficiary would act in a managerial capacity 
in the United States. The statutory definition of "managerial capacity" allows for both "personnel 
managers" and "function managers." See section 101(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." 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). 
The Petitioner has not demonstrated that the Beneficiary would qualify as a personnel manager. First, 
the Petitioner provides an organizational chart indicating that the Beneficiary would only supervise a 
technician and potentially three part-time assistants; as such, it does reflect that she would oversee 
subordinate managers or supervisors. 
In addition, the Petitioner has not established that the Beneficiary would supervise subordinate 
professionals. 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 101(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. 
The Petitioner indicated that the technician "is responsible for all IT maintenance," including "all 
computers, software, and internet service provider service" and indicated that the position requires "1 
y[ea]r experience/Bsc Computer Science." However, the duties provided for the technician are too 
brief and generic to establish that a bachelor's degree is required to perform the duties of this position. 
Further, the Petitioner has not submitted any documentary evidence to demonstrate that the 
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Matter of M-E-, Inc. 
subordinate technician holds a bachelor's degree. Furthermore, in the RFE the Director requested that 
the Petitioner submit IRS Forms 941, Employer's Quarterly Federal Tax Forms and/or comparable 
state employer tax forms to substantiate the company's employees from the date the petition was filed 
through the adjudication of the petition. However, the Petitioner questionably did not submit this 
evidence to corroborate its employees. 
In fact, the Petitioner provided a 2017 IRS Form l 120S, U.S. Income Tax Return for an S Corporation 
indicating that it paid only $32,500 in wages during that year leaving substantial uncertainty as to 
whether it employed its claimed organizational structure and the professional subordinates it claims 
reported to the Beneficiary as of the date the petition was filed. The Petitioner stated that the Director 
would be paid $25,000 per year, that the Beneficiary would earn $22,531 per year, that the technician 
would make $21,850 annually, and that it would also employ three "wait staff' earning $8 per hour. 
In other words, the 2017 IRS Form 1120 does not reflect that the Petitioner was supporting its claimed 
organizational structure as of the date the petition was filed and it does not submit the requested state 
and federal employer's tax forms to substantiate its employees. The Petitioner must resolve this 
inconsistencies in the record with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Therefore, the Petitioner has not established that 
the Beneficiary qualified as a personnel manager based on her supervision of professional subordinates 
as of the date the petition was filed. 
In the alternative, the Petitioner has not demonstrated that the Beneficiary would act as a function 
manager in the United States. 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 10l(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). 
In this matter, the Petitioner has not described or provided evidence that the Beneficiary manages an 
essential function. The Petitioner does not clearly discuss the nature of the function the Beneficiary 
would manage and her duty description indicates that she would more likely than not perform her 
function. As discussed, the Beneficiary's duty description includes several non-qualifying operational 
duties related to the direct provision of information technology services at its proposed internet cafe. 
As such, it has not established that the Beneficiary would act as a function manager under an extended 
petition. 
Lastly, the submitted evidence leaves significant doubt as to whether the Petitioner was operating 
sufficiently to support the Beneficiary in a managerial capacity as of the date the petition was filed. 
As we noted, the Petitioner's 2017 IRS Form 1120 reflected that it earned $193,445 in revenue and 
paid only $32,500 in wages and salaries during that year. The Petitioner also made statements on the 
record that left additional question as to the sufficiency of its operations, stating in response to the 
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Matter of M-E-, Inc. 
RFE in January 2019, more than a year after the date the petition was filed, that "the foreign parent 
company will support the U.S. business for the first two years to allow the company to grow and 
become financially viable." In addition, on appeal in May 2019, approximately a year and a half after 
the date the petition was filed, the Petitioner still refers to itself as a "new office." We note that the 
Petitioner must establish as of the date the petition was filed and throughout this adjudication that it is 
operating sufficiently to support the Beneficiary in a managerial capacity. However, the Petitioner's 
tax documentation and its assertions indicate that it was, and is, not operating sufficiently to support 
the Beneficiary in a managerial capacity. Indeed, it is also noteworthy that the Petitioner has provided 
no supporting documentation to substantiate its operations or its financial position. The Petitioner 
must establish that all eligibility requirements for the immigration benefit have been satisfied from the 
time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
In conclusion, the Petitioner has not established that the Beneficiary would act in a managerial capacity 
in the United States. The Beneficiary's duty description indicates that she would likely be primarily 
engaged in non-qualifying operational duties and it has not sufficiently articulated and documented 
her performance of qualifying managerial tasks. The evidence is also not sufficient to demonstrate 
that the Beneficiary would oversee subordinate managers and professionals and the evidence 
submitted with respect to its operations indicates that it was not sufficiently developed to support her 
in a managerial capacity as of the date the petition was filed. 
III. QUALIFYING RELATIONSHIP 
As we have discussed, the Director also denied the petition concluding that the Petitioner did not 
establish that it had a qualifying relationship with the Beneficiary's foreign employer. Because of the 
dispositive effect of the above finding of ineligibility; namely, our affirmation of the Director's 
conclusion that the Petitioner did not establish that the Beneficiary would act in managerial capacity 
in the United States, we will only briefly address this issue. 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities. See, 
e.g., Matter of Church Scientology Int'!, 19 I&N Dec. 593 (Comm'r 1988); Matter o_f Siemens Med. 
Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter o_f Hughes, 18 I&N Dec. 289 (Comm'r 1982). 
Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full 
power and authority to control; control means the direct or indirect legal right and authority to direct 
the establishment, management, and operations of an entity. Matter of Church Scientology Int 'l, 19 
I&N Dec. at 595. 
On the record prior to appeal, the Petitioner indicated that two individuals each owned 500 of its 
shares. The Petitioner also stated that the foreign employer was owned by the same individuals; but 
that one individual owned 51 % of its shares and the other 49%. As a preliminary matter, this leaves 
uncertainty as to whether there is common ownership between the Petitioner and foreign employer. 
The ownership of the Petitioner is reflected as an even partnership, while the ownership of the foreign 
employer indicates that one owner has a controlling interest. Now, on appeal, the Petitioner states that 
"in the initial filing, [ the Petitioner] asserted in [the] statement of support that [ the Petitioner] is a 
subsidiary of [the foreign employer] based on [its] 100% ownership of [the Petitioner]." This 
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Matter of M-E-, Inc. 
statement is in direct contradiction to its previous ownership assertions. Again, the Petitioner must 
resolve inconsistencies in the record with independent, objective evidence pointing to where the truth 
lies. Matter of Ho, 19 I&N Dec. at 582, 591-92. 
In addition, in denying the petition on this ground, the Director emphasized that the Petitioner did not 
submit all the required supporting documentation to substantiate its ownership; for instance, pointing 
to the fact that it did not submit the company's stock ledger. On appeal, the Petitioner does not address 
this basis for denial or indicate why it did not submit this evidence. As noted by the Director, as 
general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate 
entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the 
minutes of relevant annual shareholder meetings must also be examined to determine the total number 
of shares issued, the exact number issued to the shareholder, and the subsequent percentage ownership 
and its effect on corporate control. In addition, a petitioning company must disclose all agreements 
relating to the voting of shares, the distribution of profit, the management and direction of the 
subsidiary, and any other factor affecting control of the entity. See Matter of Siemens Med. Sys., Inc., 
19 I&N Dec. at 365. Without foll disclosure of all relevant documents, we are unable to determine 
the elements of ownership and control. 
For the foregoing reasons, the Petitioner has not established that it has a qualifying relationship with 
the Beneficiary's foreign employer. 
IV. FOREIGN EMPLOYMENT IN A MANAGERIAL CAPACITY 
Because of the dipositive effect of the already discussed grounds for dismissal, we will reserve the 
remaining ground for denial discussed in the Director's decision and not address whether the 
Beneficiary acted in a managerial or executive capacity abroad. 
V. 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 of M-E-, Inc., ID# 6500944 (AAO Nov. 6, 2019) 
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