dismissed EB-1C Case: Management Consulting

MATTER OF M-_1 __ _ 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 20, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a...._ _______ ___,company, seeks to permanently employ the Beneficiary as a 
management consultant 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 Nebraska Service Center denied the petition concluding that the Petitioner did not 
establish, as required , that the Beneficiary was employed abroad and would be employed in the United 
States in a managerial capacity. 
On appeal , the Petitioner contends that the Beneficiary held and would continue to hold a managerial 
position where she oversees the work of professional employees and manages an essential function. 
Upon de nova review , we fmd that the Petitioner has not established that the Beneficiary's U.S. 
employment will be in a managerial capacity. Therefore, we will dismiss the appeal. Because of the 
dispositive effect of this finding , we will reserve the remaining issue. 
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. § 204.5G)(3). 
Matter C?f M~~-~~-
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Petitioner claims that the Beneficiary would assume the role of a function manager, whose 
position would involve supervision and control of professional employees. As the Petitioner does not 
claim that the Beneficiary would be employed in an executive capacity, we will not discuss whether 
the Beneficiary's proposed position fits that statutory definition. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10l(a)(44)(A)(i) and (ii) of the Act. Personnel managers are required to 
primarily supervise and control the work of other supervisory, professional, or managerial employees. 
Section 10l(a)(44)(A)(ii) of the Act. 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. § 214.2(l)(l)(ii)(B)(3). 
On the other hand, the term "function manager" applies generally when a beneficiary does not 
primarily 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). 
A. Procedural History 
In a supporting cover letter, the Petitioner stated that the Beneficiary would "maintain professional 
managerial responsibility with respect to the various client management consulting engagements with 
which [s]he is involved," claiming that managing a function and overseeing subordinate employees 
would both be components of the proposed position. The Petitioner stated that its management 
consultants "manage a specialized function," claiming that the Beneficiary will have "continuous 
interaction with various parties" and that she will be involved in analyzing and preparing documents 
and presenting materials and recommendations to clients. The Petitioner identified the Beneficiary's 
essential function as "project planning, project management, and resource deployment management," 
and it explained that the Beneficiary would lead consulting and client teams to help each client 
company reach its business goals. 
The Petitioner provided a job duty breakdown indicating that the Beneficiary would manage "key, 
discrete aspects of consulting projects," "[ d]evelop analytical approach and project plans," supervise 
junior associates and business analysts, "[i]dentify innovative data sources and data collection 
approaches," manage data collection as well as the analyses and syntheses of findings, structure oral 
and written client presentations, organize and participate in "selected" client interviews, write and 
oversee the writing of client reports, and"[ d]irect the development of data charts" to support proposed 
recommendations. 
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Matter of M-l._ __ _. 
The Petitioner also provided an organizational chart to show "the types of studies" the Beneficiary 
leads and the employees she supervises. The chart depicts a two-tiered staffing structure where the 
Beneficiary oversees subordinate knowledge, business, and research analysts and "visualization 
experts," all claimed to be professionals possessing at least a bachelor's degree. The Petitioner did 
not provide evidence of the subordinate employees' educational credentials or demonstrate that a 
bachelor's degree is part of the hiring criteria for these positions. 
In a request for evidence (RFE), the Director addressed the function management and personnel 
management elements of the Beneficiary's proposed position. With regard to the Beneficiary's 
claimed role as function manager, the RFE pointed to the lack of an explanation describing how 
"project planning, project management, and resource deployment management" qualifies as an 
essential function and noted that the Beneficiary appears to manage projects, rather than an essential 
function. The RFE also sought clarity about the Beneficiary's reporting structure, noting that the chart 
did not depict employees who are above the Beneficiary. Further, the RFE questioned the 
Beneficiary's level of seniority within the organizational hierarchy and asked the Petitioner to provide 
evidence establishing that the Beneficiary manages an essential function, but does not perform the 
duties of that function. With regard to the Beneficiary's claimed role as personnel manager, the RFE 
noted that the Petitioner did not explain how the Beneficiary manages and controls the work of 
subordinates and questioned the Beneficiary's hiring and firing authority over those subordinates. 
In response, the Petitioner reiterated that the Beneficiary will manage both a function and personnel, 
claiming that the Beneficiary's subordinates will relieve her from having to carry out non-managerial 
job duties. The Petitioner stated that the Beneficiary "manages the workflow ... and staff on a variety 
of projects and client engagement studies," claiming that the number of subordinates the Beneficiary 
oversees varies based on the nature of the project and the client's needs. The Petitioner stated that the 
Beneficiary makes high-level decisions regarding projects her team executes, sets "the strategic 
direction of the entire consulting engagement," and manages the implementation approach for that 
"engagement." The Petitioner described the Beneficiary as "the most senior person" with respect to 
"any given engagement project," noting, however, that she is subordinate to an engagement manager 
and a partner. 
In addition, the Petitioner provided another job duty breakdown that did not elaborate on the original 
job description, but rather listed seven different categories of duties and allocated a percentage to each 
category as follows: 
• 15% to organizing deliverables by allocating work, developing project plans, and designing a 
team to best fit client needs; 
• 10% to staffing teams based on employee strengths and client needs; 
• 5% to the "orchestrate process," which includes overseeing the calendar for the project and 
interacting with clients and experts in the organization; 
• 40% to managing the team by providing daily guidance and reviewing the work of team 
members; 
• 15% to evaluating the team and "contributing to their formal evaluation process"; 
• 5% to communicating with clients to assess their satisfaction with team performance; and 
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Matter C?f M~._ __ ____. 
• 10% to recruiting activities, including evaluating job candidates and participating in hiring 
decisions. 
The Petitioner also provided an organizational chart showing the Beneficiary in the position of 
"Associate." 1 The chart shows an "Associate Partner" at the top tier of department's organizational 
hierarchy, followed by an "Engagement Manager" at the second management tier. The Beneficiary is 
depicted alongside a "Senior Associate" and an "Associate," all second from the bottom tier, directly 
below the "Engagement Manager." The fourth tier is comprised of three types of analysts and a visual 
graphics team, all depicted as the Beneficiary's subordinates. 
In the denial decision, the Director determined that project management is not an essential function 
and pointed to the reporting structure within the Beneficiary's department where her position is at the 
third tier within the function's hierarchy. The Director farther noted that the Petitioner did not explain 
the role of the Beneficiary's superiors with respect to the Beneficiary in her given department and with 
respect to the function or projects she is claimed to manage. The Director also addressed the personnel 
management element of the Petitioner's claim, finding that the Petitioner did not explain how the 
Beneficiary supervises and controls the work of her claimed subordinates or establish that the 
Beneficiary has the authority to hire and fire subordinates or take other personnel actions, such as 
promoting subordinates or approving leave requests. 
On appeal, the Petitioner maintains the claim that the Beneficiary has and would continue to manage 
an essential function of "project planning, project management, and resource deployment 
management," asserting that this function is essential to the organization and is "the very purpose the 
firm was established to achieve." The Petitioner also contends that the Beneficiary will oversee the 
work of professional subordinate employees. 
B. Analysis 
We find that the Petitioner has not provided sufficient evidence to demonstrate that the Beneficiary's 
employment meets the criteria of a function manager. First, although the Petitioner repeatedly uses 
the phrase "project planning, project management, and resource deployment management" to describe 
the essential function the Beneficiary will manage, this phrase does not sufficiently describe with 
specificity the activity to be managed. See Matter ofG-Inc., Adopted Decision 2017-05. While these 
activities convey a general sense of the Beneficiary's broad job responsibilities, they do not represent 
a "clearly defined activity" in a management consulting organization, where presumably many of the 
company's associates and management consultants plan and manage projects for the company's 
clients. Id. Further, although management consulting as a whole may be the core of this management 
consulting firm, it is insufficient to state that each individual client consulting project, of which there 
are likely many, given the nature of the Petitioner's business, is an essential function of the 
organization. As the Petitioner has not adequately defined the function the Beneficiary is claimed to 
manage, we need not address the other element of this criterion, which asks the Petitioner to establish 
that the function to be managed is essential, or core to the organization. 
1 In the appeal brief, the Petitioner indicates that the position title of ·'Associate" is interchangeable with that of 
"Management Consultant"; we note that the latter position title is listed in the Form 1-140 as the Beneficiary's proposed 
position with the U.S. entity. 
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Matter of M-J~--~ 
Further, despite claiming that the Beneficiary functions at a senior level within the organization, the 
Petitioner provided an organizational chart that shows two levels of management above the 
Beneficiary, whose position is only senior with respect to the employees she is claimed to oversee. As 
the Petitioner has not provided a more expansive organizational chart of the broader organization, we 
cannot determine the Beneficiary's level of seniority within the organization as a whole. Id. at 6. 
Further, the Petitioner must support its assertions with relevant, probative, and credible evidence. See 
Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner has not provided evidence 
demonstrating that the Beneficiary's position is at a senior level either within the organization or with 
respect to the function she is claimed to manage. 
Lastly, the Petitioner provided a job description, which indicates the Beneficiary may not primarily 
spend her time managing a function. As noted earlier, the job duty breakdown indicates that the 
Beneficiary spends 40% of her time managing a "team" and another 15% coaching, evaluating, and 
providing feedback to team members. These job duties indicate that the Beneficiary would allocate 
her time primarily to managing personnel rather than managing a function. 
Accordingly, we will also address the Petitioner's claim that the Beneficiary oversees the work of 
subordinates who are professional employees. See section 101(a)(44)(A)(ii) of the Act. In evaluating 
whether a beneficiary manages professional employees, we must determine 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, a petitioner must focus on the level of education required by 
the position, rather than the degree held by a subordinate employee. The possession of a bachelor's 
degree by a subordinate employee does not automatically lead to the conclusion that the subordinate 
is employed in a professional capacity. 
Here, the Petitioner provided job descriptions and listed the educational credentials for all of the 
positions that are subordinate to the Beneficiary. However, the Petitioner did not provide evidence, 
such as company generated job requirements, demonstrating that the positions the Beneficiary would 
oversee actually require a baccalaureate degree as a minimum to perform their respective job duties. 
We farther note that a beneficiary who is claimed to directly supervise other employees must also have 
the authority to hire and fire those employees, or recommend those actions, and take other personnel 
actions. 8 C.F.R. § 214.2(1)(1)(ii)(B)(3). Although the Petitioner states that the Beneficiary will 
oversee the work a professional team of employees and have discretion over their work assignments 
and performance evaluations, it has not provided evidence demonstrating that the Beneficiary has 
authority to hire and fire employees who are considered to be her subordinates or to take other 
personnel actions, such as promoting employees or authorizing leave requests. As stated earlier, the 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Chawathe, 
25 I&N Dec. at 376. 
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Matter(?/M□. 
In light of the deficiencies described above, the Petitioner has not established that the Beneficiary 
would be employed in the United States in a managerial capacity. 
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 of M-._I __ _.I ID# 5058737 (AAO Aug. 20, 2019) 
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