dismissed EB-1C Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF U-T-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 6, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software company that coordinates ride-sharing and delivery networks , seeks to 
permanently employ the Beneficiary as a marketing 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, concluding that the record did not 
establish, as required, that: (1) the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity; and (2) the Beneficiary has been employed abroad in a managerial 
or executive capacity. 
On appeal, the Petitioner asserts that the Director erred by disregarding evidence of the Beneficiary's 
high level of discretionary authority. 
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 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 of U-T-, Inc. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary will be employed in the 
United States, and has been employed abroad, in a managerial capacity. The Petitioner does not claim 
that the Beneficiary will be or has been employed in an executive capacity. Therefore, we restrict our 
analysis to whether the Beneficiary's employment meets the requirements of 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). 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary will be primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 
(9th Cir. 2006); Champion World, 940 F.2d 1533. 
When examining the claimed managerial capacity of a given beneficiary, we will look to 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 or executive capacity. See 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 and its staffing levels. 
A. Duties 
At the time of filing in August 201 7, the Petitioner described the Beneficiary's responsibilities in the 
United States: 
In the managerial position of Marketing Manager, [the Beneficiary] is responsible for 
owning the development and execution of effective acquisition and engagement 
campaigns for the [Petitioner's food delivery] business in thel I metropolitan 
area. . . . To grow the [food delivery] business in I I we require [the 
Beneficiary's] managerial experience permanently to identify and implement 
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Matter of U-T-, Inc. 
opportunities for involvement between [the business] and its surrounding community 
through integrated marketing campaigns which meet key performance metrics and 
celebrate the region. [The Beneficiary] is responsible for using all forms of media and 
communication to build, maintain and manage lofalty and enga,ement for the ... brand 
inl I She works from our headquarters in~----~in order to confer with 
higher-level executives to set a strategic direction which she communicates through 
frequent meetings with on-the-ground local marketing employees. 
As a Marketing Manager, [the Beneficiary] supervises the creation and 
implementation of a long-term marketing strategy that includes consistent and 
effective communication, engagement, and strategic relationship building. . . . [The 
Beneficiary] provides strategic guidance for the negotiation and selection of 
partnerships with local businesses and organizations ... [ and] acts as the main point 
of contact for all partners. . . . [The Beneficiary] manages logistics of individual 
partnership projects from start to finish, encompassing identifying and scoping 
opportunities, laying out agreements, and coordinating rollouts. She oversees the 
planning of on-the-ground events with these partners as well as campaigns which drive 
brand awareness and grow [the company's] users and driver-partners. She built a team 
for partnership development across functions, and creates a framework for 
standardizing the partnership process to achieve new growth targets in the region. 
A separate chart listed seven responsibilities: 
• Execute strategic partnerships to improve the [Petitioner's food delivery] brand 
presence by setting guidelines for negotiation. 
• Manage communication with community and brand advocates to drive [the 
Petitioner's] impact and policy narrative. 
• Closely monitor, measure, and report on marketing-driven growth in the region to 
lead key business decisions. 
• Delegates projects and oversees the workflow of 8 indirect reports: 2 Marketing 
Managers, 1 Lead Brand Ambassador, and 5 Brand Ambassadors. 
• Handle and annual budget of $520,000 for various marketing channels. 
• Determine the most optimal spend allocation strategy to achieve new growth 
targets. 
• Plan effective acquisition and engagement campaigns across different cohorts of 
users. 
In a request for evidence (RFE), the Director asked the Petitioner for more information about the 
Beneficiary's day-to-day duties. In response, the Petitioner stated: 
[The Beneficiary] develops digital campaigns to increase web traffic by creating 
content for biogs, social media accounts, digital promotions in competitive cities and 
highlighting interviews with top chefs and restaurants in the press. . . . In addition, she 
analy[z]es sales and marketing metrics through focus groups and surveys to provide 
key insights into user audiences and identify barriers that keep users from utilizing the 
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Matter of U-T-, Inc. 
application during peak hours. She uses data to forecast market trends and creates 
marketing strategies based on forecasts . . . . Further, [the Beneficiary] researches 
markets to identify new opportunities, building marketing campaigns specific [to] 
college areas, suburban areas, urban areas and other niche regional market groups. 
The Petitioner submitted a two-page list of the Beneficiary's duties, summarized below, with the 
approximate percentage of time devoted to each task: 
Job Duty Time 
1. Supervises the creation and implementation of a long-term marketing strate2v 25% 
• Drives long-term marketing strategies through scalable projects including 10% 
campaigns, scaled experiments and building frameworks 
• Collaborated with Performance Marketing Team to create a direct mail program, 5% 
reaching over 34,000 prospective leads in the first quarter 
• Built scalable operational processes for Marketing Department, including 10% 
developing a communications review process, preparing thel I 
and the SMB Marketing Framework, and setting up training sessions for couriers 
2. Directly mana2es three marketin2 mana2ers and one 102:istics mana2er 20% 
• Weekly half-hour one-on-one meetings with each team member 10% 
• Organizing and tracking team members' tasks 10% 
3. Provides strategic guidance for negotiation and selection of partnerships with local 20% 
businesses and organizations 
• Manages logistics by identifying opportunities, laying out agreements, coordinating 10% 
rollouts and planning on-ground events 
• Defines program goals and monitors partnership results 5% 
• Creates marketing plan, broken down into manageable activities and deliverables 5% 
4. Build a partnership development team and standardize the partnership process 15% 
• Sets team member goals, key performance indicators, roles, and responsibilities 5% 
• Build stakeholder management process 5% 
• Presents quarterly business reviews 5% 
5. Responsible for development and execution of acquisition and engagement 10% 
campaigns 
• Develops and leads communications and content team 5% 
• Delegates responsibilities and advocates for lifecycle marketing priorities 5% 
6. Mana2es $520,000 annual marketin2 budget 10% 
• Creates marketing plan to determine budget and resource allocation 5% 
• Creates detailed budget plan, measures metrics against campaign costs 5% 
The Petitioner described a number of campaigns that the Beneficiary had led, but did not show that 
these campaigns took place prior to the petition's August 2017 filing date. Some of the activities 
described clearly occurred afterward. The Petitioner stated that the Beneficiary's "team launched 
successfully in 21 cities thus far in 2018." At the time of filing in 2017, the Petitioner specified that 
the Beneficiary's role was "[t]o grow the [food delivery] business inl I 
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Matter of U-T-, Inc. 
The Petitioner submitted "work product samples" including a guide for restaurants usmg the 
Petitioner's delivery service and internal training materials such as an ~-------~ written 
"to provide resources to ensure we have consistent messaging." It is not evident which, if any, of these 
materials reflect the Beneficiary's work in the United States prior to the filing date. Some of these 
materials are dated 2018, after the filing date; some others predate the Beneficiary's arrival into the 
United States. 
The Beneficiary's given name appears on some of the materials, sometimes alone and sometimes with 
other given names. The materials do not reveal the Beneficiary's exact role in creating the materials. 
Tasks such as copy writing and graphic layout are operational rather than managerial tasks. If the 
Beneficiary was personally "creating content" as the Petitioner implied, then such activity would 
reduce the time she spent on managerial-level responsibilities. 
The Director denied the petition, finding that the Petitioner provided "vague and conflicting" 
information about the Beneficiary's duties and did not specify whether she is a function manager or a 
personnel manager. The Director also found that, while the Petitioner listed the Beneficiary's areas 
of responsibility, the Petitioner did not demonstrate that the Beneficiary delegated the operational tasks 
relating to those responsibilities. 
On appeal, the Petitioner asserts that is "has submitted more than sufficient evidence to demonstrate 
[the Beneficiary's] eligibility." The Petitioner contends that "the initial Immigrant Petition filing" 
showed that the Beneficiary applies "her expertise to lead and level implementation of marketing 
campaigns for regional areas throughout [the] or
1
ganizati
1
n in North America," but the initial filing 
emphasized the Beneficiary's work relating to the area. The Petitioner's response to the RFE 
indicated greatly expanded responsibility compared to the initial submission. 
A petitioner must establish eligibility at the time of filing. See 8 C.F.R. § 103.2(b)(l). Later 
developments, such as expansion of the Beneficiary's responsibilities and territories, cannot 
retroactively establish eligibility as of the filing date. See Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971). Because the Petitioner's response to the RFE focused on the Beneficiary's 
duties and responsibilities as of August 2018, that response sheds little light on the key question of the 
Beneficiary's eligibility as of the August 2017 filing date. 
B. Personnel Manager 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(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. 
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." Section 101(a)(44)(A)(iv) of the Act; 8 C.F.R. § 204.5(j)(4)(i). 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). 
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Matter of U-T-, Inc. 
In this case, the Petitioner has asserted that the Beneficiary qualifies as both a function manager and a 
personnel manager. For the reasons discussed below, we find that the Petitioner has not met its burden 
of proof for either type of managerial position. 
To determine whether the 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. 1 The Petitioner initially stated that the Beneficiary "indirectly manages eight professional 
employees: two Marketing Managers, one Lead Brand Ambassador, and five Brand Ambassadors." 
The Petitioner provided no farther information about these subordinate positions or the employees 
who held them, and did not explain the nature of the indirect management. 
In the RFE, the Director asked for more information about the subordinate positions. In response, the 
Petitioner stated that the Beneficiary "oversees and manages the work of four (4) direct reports," 
comprised of three marketing managers and one operations and logistics manager, all "professional­
level," and earning salaries between $67,000 and $79,000 per year. The Director requested the names 
and payroll records of the Beneficiary's claimed subordinates, but the Petitioner did not submit this 
information. The Petitioner did assert that all four unnamed individuals hold bachelor's degrees. The 
Petitioner stated that the operations and logistics manager holds a degree in logistics manager, while 
the three marketing managers have degrees in, respectively, psychology, English and literature, and 
communication studies. 
The four subordinates all had managerial job titles, but there was no indication that any of them had 
subordinates of their own to relieve them from primarily performing operational or administrative 
tasks. Their stated duties included elements such as "managing communication," "[a]ssisting in 
creating marketing materials," "[ d]eveloping integrated marketing campaigns," and "driving 
campaign strategies to conclusion." These phrases provided little information about the specific tasks 
performed. 
The subordinate structure in response to the RFE, submitted in August 2018, is very different from the 
structure claimed initially a year earlier. The Petitioner did not submit any evidence to show that the 
Beneficiary had any professional, supervisory, or managerial subordinates at the time of filing in 
August 2017. 
The Director found that the Petitioner provided incomplete information about the Beneficiary's 
claimed subordinates, and no supporting documentary evidence. The Director also noted that all of 
those asserted subordinates purportedly earned more than the Beneficiary's $66,000 base salary. The 
Director concluded that the Petitioner "did not clearly show how the beneficiary delegates the work 
on a day-to-day basis, or who is actually doing the work." 
On appeal, the Petitioner asserts that it had shown that one of the Beneficiary's "central job duties" 
was "overseeing her professional-level direct reports." The Petitioner acknowledges that, for privacy 
1 Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a United States 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." 
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Matter of U-T-, Inc. 
reasons, it did not submit "copies of degree diplomas, W-2s, or paycheck stubs" for the Beneficiary's 
claimed subordinates, but the Petitioner maintains that it submitted "sufficiently descriptive 
information" to establish that "such subordinates were not hypothetical." 
While the absence of confirmation of the subordinates' employment is an issue of concern, it is not 
the only such issue. The Petitioner asserted that the subordinate positions are professional, and that 
the individuals holding those positions in 2018 held baccalaureate degrees, but the Petitioner did not 
demonstrate that the positions require at least a baccalaureate degree. Furthermore, the minimal job 
descriptions do not establish that the positions warrant managerial titles. 
With respect to the salaries, the Petitioner states that, by the time it responded to the RFE, the 
Beneficiary's base annual salary had risen from $66,000 to $90,000, and therefore the Beneficiary 
earns more than her subordinates. This explanation, however, simply highlights another issue, already 
addressed above. Specifically, the Beneficiary's response to the RFE relied heavily on information 
that had changed substantially since the petition's August 2017 filing date. At the time of filing, the 
Petitioner indicated that the Beneficiary had eight "indirect reports," most of whose job titles do not 
appear on the later list of "direct reports." The Petitioner has not shown that the initially claimed 
indirect reports were managers, supervisors, or professionals, or that the Beneficiary's "indirect" 
authority over those employees rose to a managerial level. Without evidence that the Beneficiary 
already qualified as a manager at the time of filing, the substantial later changes to the personnel 
structure cannot establish eligibility. 
Absent a showing that the Beneficiary supervised managerial, supervisory, or professional 
subordinates on the date of filing, we cannot find that the Petitioner has established that the Beneficiary 
was a personnel manager at that time. 
C. Function Manager 
The term "function manager" applies generally when a beneficiary's managerial capacity derives not 
from supervising or controlling a subordinate staff: but instead from primarily 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: 
(1) 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. 
On appeal, the Petitioner states that the Beneficiary "manages the marketing strategy/content creation 
function for the organization." The record only vaguely defines this claimed function. Furthermore, 
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Matter of U-T-, Inc. 
the record does not show that the Beneficiary manages marketing strategy or content creation "for the 
organization" as a whole as claimed. Rather, the Beneficiary's role was initially local, and later 
regional, and the record shows that she reports to a I I indicating that 
the Beneficiary does not occupy the highest level of authority with regard to marketing the Petitioner's 
food delivery service. Also, as noted above, the record does not establish that the Beneficiary 
primarily manages, rather than performs, the marketing tasks described in the record. 
Based on the deficiencies and inconsistencies discussed above, 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 CAP A CITY 
The Director also found that the Petitioner did not establish that the Beneficiary was employed abroad 
in a managerial or executive capacity. Because our findings regarding the Beneficiary's proposed 
employment in the United States warrant denial of the petition and dismissal of the appeal, we need 
not reach this additional issue, and therefore reserve it. Our reservation of this issue is not a stipulation 
that the Petitioner has overcome it, and should not be construed as such. Rather, there is no 
constructive purpose to addressing the issue here, because it cannot change the outcome of the appeal. 
IV. 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 ofU-T-, Inc., ID# 5214540 (AAO Sept. 6, 2019) 
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