dismissed EB-1C Case: It Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-S-N-A-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 18, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an IT services integrator, seeks to permanently employ the Beneficiary as its senior 
director for consulting services 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 )(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 Acting Director of the Nebraska Service Center denied the petition, concluding that the record 
did not establish, as required, that the Beneficiary will be employed in a managerial or executive 
capacity in the United States; or 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. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary will be 
employed in a managerial capacity in ~he United States. 
!Jpon de ,wvo 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 
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. § 204.50)(3). 
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Maller of T-S-N-A-, Ille. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary will be employed in the 
United States in a managerial or executive capacity. The Petitioner does not claim that the , 
Beneficiary will be employed in an executive capacity. Therefore, we restrict our analysis to 
whether the Beneficiary will be employed in a managerial capacity. A managerial capacity is an 
assignment within an organization in which the employee primarily manages the organization, or a 
department, subdivision, function, or component of the organization, 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. 
An employee who "primarily" performs the tasks necessary to produce a product or to provide 
services is not considered to be "primarily" employed in a managerial or executive capacity. See, 
e.g., sections 10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); Maffer o_f Church Scientology Int 'I, 19 I&N Dec. 593, 
604 (Comm'r 1988). 
A Duties 
The regulation at 8 C.F.R. § 204.5(i)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. 
The statement must clearly describe the duties to be performed by the Beneficiary. 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)(1). 
The Petitioner operates information and communication technology (JCT) systems for businesses 
and public sector institutions. With the petition, the Petitioner submitted a letter 1 indicating that the 
duties and percentages of time devoted to the duties of the offered position of senior director for 
consulting services include: 
• Managing and executing complex consulting projects for the customer with the a11n of 
developing ICT architectures further and modeling the strategy for these on the T-Systerns 
portfolio and allocating budgets and leads; (15%) 
• Transforming customer requirements, taking account of target- pricing, into a rough 
architecture, preparing high level designs (big picture) for highly complex technical 
solutions, and levels of integration; (15%) 
1 The Petitioner indicated in i1s supporting letter submitted with the petition that the Beneficiary was employed wi1h the 
qualifying entity abroad from 2011 to November 2014 :as Head of and that he was 
transferred to the United States in November 2014 in L-lA nonimmigrant status to serve as Head of 
for the Petitioner. On appeal, the Petitioner asserts that the Beneficiary has been employed in the United 
States as senior director of consulting services for its unit since July 2017. 
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Matter of T-5-N-A-, Inc. 
• Actively developing the consulting portfolio together with Service , Delivery and Portfolio­
Management; (10%) 
• Preparing and simulating highly · complex business cases based on target pricing, also for 
outsourcing projects; (5%) 
• Defining tasks for the service area for solution projects with a large number of complex 
portfolio components; (5%) 
• Preparing innovative overall solutions for highly complex tasks involving diverse strategic 
considerations with an impact on business results; (15%) 
• Developing, designing and implementing overall strategies with cross-company implications ; 
(15%) 
• Advising top-level management on strategic and mission-critical issues; (5 %) 
• Serving as the contact for highly sensitive issues and problems; (5 %) 
• Promoting the development and implementation of leading practices in own areas of 
responsibility. (10 %) 
In a request for evidence (RFE) , the Director advised the Petitioner that it appeared that the 
Beneficiary would be doing the work of the organization instead of primarily managing the work. 
The Director requested that the Petitioner submit additional evidence to establish that the 
Beneficiary will be employed in the United States primarily in a managerial or executive capacit y. 
In response to the RFE, the Petitioner submitted a letter listing the same duties and percentages of 
time devoted to the duties of the position of senior director for consulting services that were detailed 
in its original letter supporting the petition. 
In his decision , the Director determined that the· Beneficiary would be spending the majority of his 
time performing the tasks of the organization and not managing the organization. Thus, the Director 
found that the Petitioner has not established that the Beneficiary will be employed in a managerial or 
executive capacity in the United States. 
On appeal, the Petitioner asserts that "the job duties performed by the [Beneficiary] indicate that 
most of his time will be performing managerial duties." It submits a letter detailing the following 
duties and percentages of time devoted lo the duties of the position of senior director for consulting 
services. However, lhe position described on appeal differs significantly from the position described 
in the initial petition. At the time of filing, the Petitioner described the offered position as senior 
director for consulting services for the "Consulting Services" unit. But on appeal, the Petitioner 
writes that the Beneficiary is now employed as the senior director for consulting services for the 
unit and provides a new set of duties. Importantly, the 
Petitioner adds three new duties listed below , which it now claims will occupy 45 % of the 
Beneficiary's time: 
• Responsible for the unit (budget responsibility and sales targets: 70 
Mio.€ p.a .) for customers including inte~national corporate clients out of different industries 
(automotive, electronics, health , petro chemistry , telecommunication etc.) (15 % ); 
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Matter of T-S-N-A-, Inc. 
• Strategic coordination of the T-Systems' approaches 
"Business ICT and Service Assessment" and with focus on 
enterprise solutions. Integrating innovative ideas and market and technology 
trends (15%); and 
• Leadership for the unit with more than 6 colleagues and international support especially for 
the business units in USA, Canada, Mexico, Brazil, Switzerland and Austria (15%). 
Further, many of the descriptions of the previously listed duties have been expanded on appeal , and 
their percentages have been reduced. With this new description, the Petitioner asserts that the 
Beneficiary will be employed in a managerial capacity. 
However, a petitioner cannot materially change a pos1t1on's level of authority within the 
organizational hierarchy or the associated job responsibilities. A petitioner must establish that the 
position offered to a beneficiary, when the petition was filed, merits classification as a managerial or 
executive position. See Matter of Michelin Tire Corp., 17 I&N Dec . 248, 249 (Reg'! Comm ' r 1978). 
A petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to U.S. Citizenship and Immigration Services (USCIS) requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r ·l 998). 
In this case, the Petitioner has materially altered the job duties of the offered position on appeal. By 
adding new duties to the offered position, the Petitioner seeks to elevate the Beneficiary' s role in·the 
company. However, this is not sufficient to demonstrate that the offered position, as it was 
described at the time of filing, was in a manag~rial capacity . As noted by the Director, the position 
offered to the Beneficiary when the petition was filed does not merit classification as a managerial 
position because the Beneficiary would primarily perform the tasks necessary to provide services to 
its customers, and he would not primarily manage the organization. For example , many of the duties 
describe performing the work required to provide a service . Duties such as transforming customer 
requirements into a rough architecture and preparing designs, preparing and simulating complex 
business cases , and developing the consulting portfolio indicate that the Beneficiary will perform 
operational duties, rather than serve in a managerial position. Further, the job description discusses 
defining "tasks," developing "strategies," preparing "solutions," and promoting "leading practices." 
However, the Petitioner does not provide examples of the tasks to be defined, the strategies to be 
developed, the solutions to be prepared, or the practices to be promoted, and it does not explain how 
these duties are managerial. Additionally, the job description states that the Beneficiary will serve as 
the contact for "issues and problems," but it does not describe the issues and problems he will be 
addressing, who he will be serving as the contact for, or how this duty is managerial. On appeal, the 
Petitioner has not overcome the concerns with the original position description. As noted, the 
Petitioner must establish that the position offered at the time of fiting, merits classification as a 
managerial position. As it has not done_ so, the Petitioner has not met its burden to establish that the 
Beneficiary will be employed in a managerial capacity in the United States based on the duties of the 
offered. position. 
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Matter of T-S-N-A-, Inc . 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. If staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, USCIS must 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. 
With the petition, the Petitioner submitted an .organizational chart showing that the Beneficiary 
would supervise three employees in the offered position of senior director for consulting services: a 
Manager, an enterprise architect, and a project manager. In its supporting letter, the Petitioner 
stated 'that the positions of Manager, enterprise architect, and project manager are "professional 
and managerial" but did not list the duties for these three positions or state the level of education 
required for entry into these occ;:upatio~s. · 
In the RFE, the Director noted that the organizational chart indicates that the Beneficiary would 
supervise the work of three employees, but it shows a dotted line between the Beneficiary and the 
employees. The Director indicated that the dotted line normally implies a functional relationship. 
The Director also stated that the Petitioner had not provided evidence to establish that the three 
positions are professional or managerial. The Director requested that the Petitioner submit 
additional evidence to establish that the Beneficiary will be employed in the United States primarily 
in a managerial or executive capacity. 
In response to the RFE, the Petitioner submitted a new organizational chart showing two employees 
to be supervised by the Beneficiary in the offered position of senior director for consulting services: 
an enterprise architect and a project manager, with a dotted line between the Beneficiary and the two 
employees. It did not explain the significance of the dotted line. 
In his decision, the Director stated that the new organizational chart shows that the Beneficiary 
supervises only two employees, and that the dotted line on the chart has not been explained. Thus, 
the Director determined that the Petitioner has not estc1:blished that the Beneficiary will be employed 
in a managerial or executive capacity in the United States. 
On appeal, the Petitioner asserts that the organization has expanded since the initial filing and the 
Beneficiary will supervise seven employees in the United .States and in other countries. It submits a 
new organizational chart showing that the Beneficiary will supervise three employees in the United 
States (an enterprise architect, the "Head of "and a sales and project manager) 
and four in other countries (three sales and project managers and a sales manager). 
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Matter of T-S-N-A-, Inc. 
As previously noted, a petitioner cannot materially change a position's level of authority within the 
organizational hierarchy or the associated job responsibilities on appeal. A petitioner must establish 
that the position offered to a beneficiary, when the petition was filed, merits classification as a 
managerial or executive position. See Matter of Michelin Tire Corp., 17 l&N Dec. at 249. In this 
case, the Petitioner has materially altered the offered position's level of authority within the 
organizational hierarchy on appeal. It changed the number of employees to be supervised by the 
Beneficiary from three (at the time the petition was filed), to two (at the time the RFE response was 
submitted), to seven (on appeal). As noted, a petitioner may not make material changes to a petition 
in an effort to make a deficient petition conform to USC IS requirements. See Matter of Izwnmi, 22 
I&N Dec. at l 76. Therefore, we will consider the Petitioner's staffing as it was initially described. 
The Petitioner has not demonstrated that the Beneficiary will be employed as either a personnel 
manager or a function manager. See section ·101(a)(44)(A) of the Act. A personnel manager 
supervises and controls the work of other supervisory, professional, or managerial employees; the 
duties of a first-line supervisor are not considered managerial unless the employees supervised are 
professional. Id. A personnel manager must :also have the authority to execute or recommend 
personnel actions such as hiring, firing, and promotions. A function manager need not directly 
supervise other employees, but must manage an essential function within the organization, or a 
department or subdivision of the organization, and function at a senior level within the 
organizational hierarchy or with respect to the function managed. Id. 
The Petitioner does not contend that the Beneficiary would act as a function manager; as such we 
will only analyze whether he would act as a personnel manager. Here, the position offered does not 
merit classification as a managerial position because the Petitioner has not established that the 
employees to be supervised by the Beneficiary (as described in the initial petition and RFE response) 
are professional employees. 2 
In determining whether a beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require a bachelor's · degree as a minimum for entry into the field of 
endeavor.3 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 
2 The Petitioner has not clarified whether the Beneficiary will serve as a personnel manager or a function manager. 
Personnel managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. See section IOl(a)(44)(A)(ii) of the Act. Although the job titles of the Beneficiary's proposed 
subordinates suggest that the Beneficiary would oversee other managers or supervisors, none of the provided 
organizational charts reflect that his proposed subordinates would oversee subordinates of their own. As such, the 
Beneficiary cannot qualify as a personnel manager on this basis. Therefore, our analysis will focus on whether the 
Beneficiary qualifies as a personnel manager based on his supervision of professional subordinates. 
J 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 1 (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 elementaryor secondary schools, colleges, academies, or seminaries.'' · 
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Matter of T-S-N-A-, Inc. 
employee does not automatically lead to the conclusion that an employee is employed 111 a 
professional capacity. 
Initially, the Petitioner stated that the minimum requirement for the positions of enterprise architect 
and project manager is at least a bachelor's degree, and that the two employees currently holding the 
positions each hold a bachelor's degree. It also lists the duties for the positions of enterprise 
architect and project manager. The Petitioner asserted in response to the RFE that the positions of 
enterprise architect and project manager require a bachelor's degree. However, it did not provide 
any evidence to support that assertion. On appeal, it states that "most of the direct reports have 
earned at least the equivalent of a US bachelor's degree based on the combination of several years of 
experience and formal education and training.)' However, the Petitioner has not provided any 
evidence to establish that a bachelor's degree is actually necessary to perform the duties of any of 
the jobs listed in the organizational charts provided. A petitioner bears the burden of establishing 
eligibility for the immigration benefit sought. Section 291 of the Act; Matter of Skirhall Culwral 
Ctr., 25 I&N Dec. 799, 806 (AAO 20:l 2). Thus, the Petitioner has not established that lhc 
Beneficiary, as a personnel manager, will primarily supervise and control the work of other 
professional employees. 
We note that the Petitioner indicates on appeal that the Beneficiary's L-lA nonimmigrant visa 
extension petition was approved by USCIS in 2017, following the issuance of a request for evidence 
relating to "the exact same legal issue" as in this case. We are not required to approve petitions 
where eligibility has not been demonstrated merely because of prior approvals that may have been 
erroneous. Mauer of Church Scientology Int'/, 19 l&N Dec. 593, 597 (Comm'r. 1988). In the 
present matter, the Director reviewed the record of proceedings and concluded that the Petitioner 
was ineligible. The Petitioner has not overcome ~his finding on appeal. 
The Petitioner also cites Matter of Z-A-, Inc., Adopted Decision 2lll6-02 (AAO Apr. 14, 2016), and 
states that "an L-lA intra-company manager can also be supported by personnel outside of the 
United States within an international organization." This issue in this case, however, is that the 
Petitioner's description of the offered position atjd the number and type of positions the Beneficiary 
will supervise, changed significantly from the initial filing to appeal. Herc, the personnel outside of 
the United States that the Petitioner is asking us to consider were only added as part of the 
"expanded" team described on appeal. Although we may consider personnel outside of the United 
States, the Petitioner must establish eligibility at jhe time of filing. 
Finally, the Petitioner quotes a USCIS policy memorandum for the proposition that USCIS officers 
must weigh all relevant factors when determining whether the beneficiary of an L-1A nonimmigrant 
classification will primarily manage an essential function, including evidence of the beneficiary's 
role within the wider qualifying international organization. The Petitioner is correct that we will 
consider the Beneficiary's role in the wider qualifying organization when determining whether a 
beneficiary is a function manager; however, in this case the Petitioner has not claimed or 
demonstrated that the Beneficiary will manage an essential function. 
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Matter of T-S-N-A-, Inc. 
In this immigrant visa proceeding, the Petitioner has not established that the Beneficiary will be 
employed in a managerial or executive capacity in the United States. 
III. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director also found that the Petitioner did not establish that the Beneficiary has been employed 
abroad for at least one year in a managerial or_executive capacity. Specifically, as with the U.S. 
position, the Director stated that the Beneficiary was doing the work of the foreign entity and not 
primarily performing executive or managerial duties abroad.4 
The Petitioner did not address this issue on appeal.5 A petitioner bears the burden of establishing 
eligibility for the immigration benefit sought. ?ection 291 of the Act; Matter of Skirball Cultural 
Ctr., 25 l&N Dec. at 806. The Petitioner has not established that the Beneficiary has been1employcd 
abroad for at least one year in a managerial or ex~cutive capacity. 
IV. COI;JCLUSION 
The Petitioner has not established that the Beneficiary will be employed in a managerial or executive 
capacity in the United States; or that the Beneficiary has been employed abroad for at least one year 
in a managerial or executive capacity. · 
ORDER: The appeal is dismissed. 
Cite as Matter of T-S-N-A-, Inc., ID# 1322986 (AAO July 18, 2018) 
~ If the beneficiary is already in the United States working/for the foreign employer or its subsidiary or affiliate, then the 
petitioner must demonstrate 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 mamigerial or ex:eculive capacity. 8 C.F.R. ~ 204.SU)(J)(i)(B). 
~ The Petitioner states on appeal that the "narrow issue'" is-whether the proposed employment in the United States is in a 
managerial capacity. 
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