dismissed EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 12484199 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUN. 1, 2021 
Form I-140, Petition for Multinational Manager or Executive 
The Petitioner, a provider of Internet commerce systems and implementation services, seeks to 
permanently employ the Beneficiary as a principal engineer. The company requests his classification 
under the first-preference, immigrant category for multinational managers and executives . See 
Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l )(C). 
After first denying the filing due to abandonment, 1 the Director of the Texas Service Center reopened 
the proceedings and denied the petition on other grounds . The Director concluded that the Petitioner 
did not demonstrate the claimed , managerial nature of the Beneficiary's proposed U.S. work or his 
prior employment abroad. 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the burden of proof); see also 
MatterofChawathe, 25 I&N Dec. 369,375 (AAO 2010) (discussing the standard of proof). Upon de 
nova review , we will dismiss the appeal. 
I. MULTINATIONAL MANAGERS AND EXECUTIVES 
A petitioner for a multinational manager or executive must demonstrate that it has been doing business 
for at least one year and would employ a beneficiary in the United States in a managerial or executive 
capacity. Section 203(b )(1 )(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(D) , (5). A petitioner must also 
establish that, in the three years before a beneficiary's nonimmigrant admission to the United States, 
the petitioner, an affiliate, or a subsidiary employed the beneficiary abroad for at least one year in a 
managerial or executive capacity. Section 203(b )(l)(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(B), (C). 
1 The Director initially found the Petitioner 's response to a written request for additional evidence (RFE) to be untimely. 
See 8 C.F.R. § I 03.2(b)(8)(iv)(requiringa petitioner to submit anRFE response within 12 weeks ofa request's issuance). 
A la terreview, however, revealed the response 's timely submission. After reopening the proceedings, the Director issued 
the Petitioner a written notice of intent to deny (NOID) the petition . 
II. THE PROPOSED U.S. WORK 
The term "managerial capacity" means work that "primarily" involves: I) managing an organization 
or a department, subdivision, function, or component of it; 2) supervising and controlling the w01k of 
other supervisory, professional, or managerial employees, or managing an essential function within an 
organization, depaiiment, or subdivision; 3) having authority to hire and fire subordinates or to 
recommend those and other personnel actions, or, if no other employee is directly supervised, 
functioning at a senior level within an organizational hierarchy or regarding a function managed; and 
4) exercising discretion over the daily operations of the activity or function for which the employee 
has authority. Section 1 0l(a)(44)(A) of the Act, 8 U.S.C. § 1101 (a)(44)(A); 8 C.F.R. § 204.5(j)(2). 
A petitioner for a multinational manager must demonstrate that a beneficiary's proposed work would 
meet all four elements of the definition of"managerial capacity." A petitioner must also establish that 
a beneficiary would "primarily" perform managerial-level duties, as opposed to operational tasks. See 
Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). 
The definition of "managerial capacity" allows management of personnel or essential functions. The 
Petitioner does not asse1i the Beneficiary's management of an essential function either in the United 
States or abroad. 2 We will therefore consider his work only as a personnel manager. A personnel 
manager must primarily supervise and control the work of other supervisory, managerial, or 
professional workers. Section 10l(a)(44)(A)(ii) of the Act; 8 C.F.R. § 204.5(i)(2). "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." Section 101 (a)( 44 )(A)(iv) of 
the Act; 8 C.F.R. § 204.5(i)(2). 
When considering the managerial nature of proposed work, users examines the job duties of an 
offered position. See 8 C.F.R. § 204.S(i)(S) (requiring a petitioner to "clearly describe the duties to be 
performed by the alien"). users also considers: the nature and structure of the U.S. business; the 
existence of other workers who could relieve a beneficiary from performing operational duties; the 
proposed job duties of a beneficiary's subordinates; and any other factors potentially affecting a 
beneficiary's business role. 
The record indicates the Petitioner's temporary employment of the Beneficiary in the offered position 
of principal engineer since December 2014, when he transferred to the U.S. company to work in L-1 
nonimmigrant visa status. 3 The Petitioner seeks to permanently employ the Beneficiary in the same 
position, contending that the job is managerial in nature. The Petitioner stated that the offered position 
involves managing projects to help corporate clients update and improve their information technology 
systems. 
2 The Petitioner submitted a letter stating that the Beneficiary would manage "a critical function" of the company's 
business. The Director, however, did not interpretthestatement asassertingtheBeneficiary's managementofan "essential 
function." See section IO l(a)(44)(A) of the Act; 8 C.F.R. § 204.5(i)(2). On appeal, the Petitioner does not fauk the 
Director's interpretation. We therefore will not consider the Beneficiary's qualifications asa function manager. See Matter 
ofM-A-S-, 24 I&NDec. 762, 767 n.2 (BIA2009)(decliningto consider an issue that a paiiydidnotraise on appeal). 
3 L-1 status allows qualifiedintracompanytransferees to temporarily work in the United States. Sec section 10 l(a)(l 5)(L) 
of the Act; 8 C.F.R. § 214.2(1). 
2 
The Petitioner's RFE response, however, discloses that, since the petition's filing almost one year 
prior, the company "promoted" the Beneficiary to "the more senior position of Distinguished 
Engineer." The RFE response also indicates his work on a different client project than at the time of 
the petition's filing. 
A petitionermustestablish eligibility "at the time of filing the benefit request." 8 C.F.R. § 103 .2(b )(1). 
Also, "a petitioner may not make material changes to a petition that has already been filed in an effort 
to make an apparently deficient petition conform to [immigration service] requirements." Matter of 
lzummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 1998). The Director found that the Petitioner 
improperly changed the Beneficiary's offered position from principal engineer to distinguished 
engineer. The Director stated that "[s]ubsequent developments or events in the [Beneficiary's] career 
cannot retroactively establish that he was already eligible for the classification sought as of the filing 
date." 
The record, however, does not establish that the Beneficiary's "promotion" to the position of 
distinguished engineer materially affects his eligibility for the requested benefit. The Petitioner 
described the job duties of the new position as largely the same as the Beneficiary's prior duties. The 
new description in the Petitioner's NOID response combines duties in the prior categories of"People 
Management" and "Team Management and Leadership" into one category on which the Beneficiaiy 
would devote 25% of his time. The description also changes the name of the "Project Management, 
Estimation, and Strategy" category to "Client Account Management, Estimation and Strategy." But, 
besides a few, additional job duties in the categories of"Client Account Management, Estimation and 
Strategy" and "Client Management," the duties remain the same as originally described. Thus, 
contrary to the Director's finding, the record does not establish the Petitioner's material change of the 
offered position. 
The Director also found that the Petitioner's descriptions of the proposed job duties do not establish 
"what the beneficiary would actually be doing on a daily basis." "Specifics are clearly an important 
indication of whether [a beneficiary's] duties are primarily executive or managerial in nature, 
otherwise meeting the definitions [ of the terms managerial and executive capacity] would simply be a 
matter ofreiterating the regulations." Fed in Bros. Co. Ltd v Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), ~if'd, 905 F.2d41 (2d Cir. 1990). As the Director found, the Petitioner initially described some 
of the Beneficiary's proposed duties in vague terms. The company's NOID response, however, 
provides a sufficiently detailed list of job duties. 
The Director further found that the Petitioner's descriptions of the Beneficiary's proposed job duties 
do not demonstrate that he would "manage[] the organization, or a department, subdivision, function, 
or component of the organization." See section 101 (a)(44)(A)(i) of the Act; 8 C.F.R. § 204.5(j)(2) 
(defining the term "managerial capacity"). The Director found that the Beneficiary's proposed 
supervision of client projects does not establish his proposed management of the petitioning 
organization or a component of it. The Director stated: "Outside clients are not the organization, or 
a department, subdivision or component of the organization." 
The record indicates that the Petitioner's business involves sending workers to perform services at 
client sites. As the Petitioner stated in its NOID response and argues on appeal, "[a]n essential 
component of [our] business is the management of programs and offered services to the company's 
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clients." Thus, we find that, under section 101 (a)(44)(A)(i) of the Act, the Beneficiary's proposed 
management of project teams could constitute management of a component of the Petitioner if the 
teams primarily consist of company employees. 
We share the Director's concerns, however, that the Beneficiary's duties and scope of his purported 
managerial responsibilities may vary from projectto project. The Director noted that, after completing 
client assignments, the Beneficiary would move to other projects with potentially different workers. 
The Director found that USCIS could not determine whether the Beneficiary would primarily 
supervise and control the work of other supervisory, professional, or managerial employees "if the 
supervised [workers] are constantly changing." 
The Petitioner's NOID response states: "Although the professionals managed by [the Beneficiary] are 
assigned to a paiiicularprojectmanaged byhim,pleasenote that many, if not all, of these direct reports 
may continue to be managed by [the Beneficiary] on future client account programs." The record, 
however, does not establish that the Beneficiary would continue to manage most of his current 
subordinates. Evidence indicates that, on his new client project, the Beneficiary does not supervise 
any of his subordinates from his immediate, prior project. Thus, the record suggests that, on future 
projects, the Beneficiary may continue to manage different workers and possibly those who are not 
supervisors, professionals, or managers. Also, although the Petitioner submitted copies of resumes 
and university degrees of the Beneficiary's current subordinates, the record lacks sufficient evidence 
that the Petitioner ( or its Indian affiliate) employs them. Thus, contrary to sections 1 0l(a)(44)(A)(i), 
(ii) of the Act, the Petitioner has not demonstrated that the Beneficiary would primarily manage a 
component of the Petitioner, or primarily supervise and control the work of other supervisory, 
professional, or managerial employees. We will therefore affirm the petition's denial. 
Also, although unaddressed by the Director, inconsistencies of record cast additional doubts on the 
claimed, managerial nature of the proposed work. As listed in the Petitioner's responses to both the 
RFE and NOID, the percentages of time the Beneficiary would spend on his job duties total 110%. 
The company has not explained how the Beneficiary could spend more than 100% of his time on the 
duties. This unresolved discrepancy casts doubt on the accuracy of the proposed duties and their 
corresponding percentages of time. A petitioner must resolve inconsistencies of record with 
independent, objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591 
(BIA 1988). 
Also, although we find that project teams can constitute components of petitioners under section 
101 (a)(44)(A)(i) of the Act, evidence indicates that the Beneficiary would manage client employees 
as well as those of the Petitioner. The company's initial letter states that, in the offered position, the 
Beneficiary "ensures that the project and client teams are streamlined" and discusses "key decisions 
and roadmap strategies with the client and project teams." The references to both client and project 
teams suggest that, besides employees of the Petitioner, the Beneficiary would manage client 
employees. Because the Beneficiary may manage teams containing client employees, the record does 
not demonstrate that he would primarily manage a component of the Petitioner. 
Further, the record does not establish that the Beneficiary would primarily perform managerial-level 
job duties. Pursuant to the definition of the term "managerial capacity," the Petitioner's job-duty 
descriptions in the categories of "People Management," "Team Management and Leadership," and 
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"Project Management, Estimation, and Strategy" demonstrate the Beneficiary's proposed supervision 
and control of others' work. But the descriptions indicate that he would spend only 45% of his time 
on these duties. The record therefore does not demonstrate that the Beneficiary would "primarily" 
serve as a personnel manager. See section 10 l(a)(44)(A) of the Act. 
In addition, the Petitioner's job-duty descriptions contain redundant tasks. Under "Team Management 
and Leadership," the proposed duties ofleading and managing a software project team and directing 
and reviewing project plans appear to include the tasks of overseeing project plans, scope, estimation, 
development, and strategies listed in the category of "Project Management, Estimation, and Strategy." 
Similarly, the categories of "Team Management and Leadership," "Technical Advising," "Client 
Management," and "Business Development" all involve discussing key decisions, strategies, systems, 
or project status with clients. The redundant duties cast further doubt on the accuracy of the 
Petitioner's job-duty descriptions and the con-es ponding time percentages. 
The Director did not inform the Petitioner of these additional, evidentiary deficiencies. Thus, in any 
future filings in this matter, the Petitioner must resolve the discrepancies with independent, objective 
evidence pointing to where the truth lies. See Matter o/Ho, 19 I&N Dec. at 591. 
For the foregoing reasons, the Petitioner has not demonstrated its proposed employment of the 
Beneficiary in a managerial capacity. We will therefore affirm the petition's denial. 
III. THE WORK ABROAD 
Like a petitioner claiming the managerial nature of proposed U.S. work, a petitioner asse1iing a 
beneficiary's managerial employment abroad must demonstrate that the foreign work met all four 
elements of the definition of "managerial capacity." A petitioner must also establish that the 
beneficiary "primarily" performed managerial-level duties, as opposed to operational tasks. See 
Family Inc., 469 F.3d at 1316. 
When determining the managerial nature of a beneficiary's work abroad, USCIS examines the job 
duties. See 8 C.F.R. § 204.5(j)(5). The Agency also considers: the nature and structure of the foreign 
business; the existence of other employees who relieved a beneficiary from performing operational 
duties; the job duties of a beneficiary's subordinates; and other factors that affected a beneficiary's 
business role abroad. 
The record shows the Beneficiary's prior employment by the Petitioner's affiliate in India. The 
Petitioner asserts that, before the Beneficiary's transfer to the United States in December 2014, he 
served the affiliate for more than 10 years in the managerial position of "specialist platform." 
The Director found the Petitioner's job-duty descriptions too broad to establish the Beneficiary's 
foreign work in a managerial capacity. The descriptions, however, provide enough details to render 
them credible. We will therefore withdraw the Director's contrary finding. 
As the Director's decision notes, the Beneficiary entered the United States in L-lB nonimmigrant 
status as a "specialized knowledge professional." A specialized knowledge professional is a member 
of the professions who has "specialized knowledge." 8 C.F.R. § 214.2(l)(l)(ii)(E). The tenn 
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"specialized knowledge" means "special knowledge possessed by an individual of the petitioning 
organization's product, service, research, equipment, techniques, management, or other interests and 
its application in international markets, or an advanced level of knowledge or expertise in the 
organization's processes and procedures." 8 C.F.R. § 214 .2(1)(1 )(ii)(D). 
Because USC IS admitted the Beneficiary to the U.S. based on his specialized knowledge, the Director 
found insufficient evidence that the Beneficiary worked abroad in the claimed, managerial capacity. 
The Director stated: "Since the beneficiary held a specialized knowledge position and not a 
managerial position abroad before coming to the United States, the beneficiary does not have the 
qualifying period of managerial or executive employment abroad to qualify for this classification." 
Contrary to the Director's conclusion, however, we do not find specialized knowledge and 
managerial/executive capacities to be mutually exclusive. Conceivably, a beneficiaiy could have 
worked abroad in a capacity that was both managerial/executive and involved specialized knowledge. 
We note, for example, that specialized knowledge includes special knowledge of an organization's 
"management." 8 C.F.R. § 214.2(1)(1)(ii)(D). Also, while the definitions of both "managerial 
capacity" and "executive capacity"require a beneficiary to have "primarily" worked in those roles, 
the definition of "specialized knowledge" does not similarly require a foreign national to have 
"primarily" worked in a capacity involving specialized knowledge. Compare sections IO 1( a)( 44 )(A), 
(B) of the Act with 8 C.F.R. § 214.2(l)(l)(ii)(D). Thus, the Beneficiary's U.S. admission in L-IB 
status does not foreclose his employment abroad in a managerial capacity. 
The record does not support the Director's denial of the petition based solely on the Beneficiary's U.S. 
admission in L-1 B visa status. We will therefore withdraw the Director's contrary finding. But 
additional, evidentiary deficiencies, unaddressed by the Director, prevent the Petitioner from 
establishing the Beneficiary's work abroad in the claimed, managerial capacity. 
Contrary to the requirements of a personnel manager, the record does not establish thatthe Beneficiaiy 
primarily supervised and controlled the work of others in India. See section 101 (a)(44)(A)(ii) of the 
Act; 8 C.F.R. § 204.5(i)(2). The Beneficiary's proposed job duties include personnel management 
duties, such as assigning tasks, and managing and assessing employee performance. But the job-duty 
descriptions do not demonstrate that he "primarily" performed those tasks. Rather, the descriptions 
indicate that he spent most of his time on other duties, such as: defining technical designs and 
architectural approaches; and assuming responsibility for high quality codes and adherence to 
applicable company and/or client standards in solutions deliveries. The Petitioner has not 
demonstrated that these other tasks involved supervision and contro 1 over others' work. 
Also, the Petitioner's initial letter states that, in India, the Beneficiary managed a team of two 
employees, both in the position of "Senior Associate Technology Ll ." In contrast, the company's 
NOID response includes a letter and organizational chart indicating the Beneficiary's direct 
supervision of six employees abroad. Also, neither the names nor positions ofany of the six employees 
match those of the two employees identified in the initial letter. The unexplained discrepancies in the 
number, names, and positions of the Beneficiary's subordinates abroad cast doubt on the accuracy of 
the Petitioner's evidence and thus on the claimed, managerial nature of the foreign work. See Matter 
of Ho, 19 I&N Dec. at 591 (requiring a petitioner to resolve inconsistencies ofrecord). 
6 
The record does not support the Director's denial of the petition based solely on the Beneficiary's L­
lB admission into the United States. In any future filings, however, the Petitioner must resolve the 
inconsistencies discussed above regarding the claimed, managerial nature of the Beneficiary's foreign 
work. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
Also unaddressed by the Director, the record does not establish the Petitioner's ability to pay the 
proffered wage of the offered position. A petitioner must demonstrate its continuing ability to pay a 
proffered wage, from a petition's priority date until a beneficiary obtains lawful permanent residence. 
8 C.F.R. § 204.5(g)(2). Evidence of ability to pay must generally include copies of annual reports, 
federal tax returns, or audited financial statements. Id. 
The Petitioner stated that the Beneficiary would earn $159,131 a year in his new position as a 
distinguished engineer. The petition's priority date is December 19, 2017, the date of the petition's 
filing. See 8 C.F.R. § 204.S(d)(explaining how to determine a petition's priority date). 
As proof of its ability to pay, the Petitioner submitted a 2017 letter from its chief financial officer 
(CFO). If a petitioner employs at least 100 people, a director "may accept a statement from a financial 
officer of the organization which establishes the prospective employer's ability to pay the proffered 
wage." 8 C.F.R. § 204.5(g)(2). The CFO's letter states that, in 2016, the Petitioner employed more 
than 3,000 U.S. workers and generated more than $40 million in net income. As previously indicated, 
however, the petition's priority date is December 19, 2017. Thus, contrary to 8 C.F.R. § 204.5(g)(2), 
the letter does not demonstrate the Petitioner's ability to pay the proffered wage "at the time the 
priority date [was] established" or thereafter. 
Also, USCIS records indicate the Petitioner's filing of multiple Form 1-140 petitions. A petitioner 
must demonstrate its ability to pay the proffered wage of each petition it files until a beneficiary obtains 
lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Thus, the Petitioner here must demonstrate its 
ability to pay the combined proffered wages of this and any other petitions it filed that were pending 
or approved as of this petition's priority date of December 19, 201 7, or filed thereafter. See Patel v. 
Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming our revocation of a petition's approval 
where, as of the filing' s grant, a petitioner did not establish its ability to pay the combined proffered 
wages of multiple petitions). 4 
The record lacks the proffered wages and priority dates of the Petitioner's other, applicable Form 1-
140 petitions. USCIS is therefore unable to calculate the total, combined proffered wages that the 
Petitioner must demonstrate its ability to pay in 2017, 2018, 2019, and 2020. The record therefore 
does not establish the company's continuing ability to pay the proffered wage. 
For the foregoing reasons, the record does not establish the Petitioner's ability to pay the proffered 
wage. Thus, in any future filings in this matter, the company must submit an acceptable letter from a 
4 The Petitioner need not demonstrate its ability to pay proffered wagesofpetitions that it withdrew or that USC IS rejected, 
denied, or revoked without pending appeals. The Petitioner also need not demonstrate its ability to pay proffered wages 
before the priority dates of their corresponding petitions or after the dates their corresponding beneficiaries obtained lawful 
permanent residence. 
7 
financial officer or copies of annual reports, federal tax returns, or audited financial statements 
demonstrating the company's ability to pay in 2017, 2018, 2019, and 2020. The company must also 
submit the proffered wages and priority dates of its other Form 1-140 petitions that were pending or 
approved as of December 19, 2017, or filed thereafter. The Petitioner may submit additional evidence 
of its ability to pay, including proof of any wage payments to applicable beneficiaries in relevant years 
or materials supporting the factors stated in Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l 
Comm'r 1967). 
V. CONCLUSION 
The Petitioner has not demonstrated its proposed employment of the Beneficiary in a managerial 
capacity. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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