dismissed EB-1C Case: Medical Devices

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 21, 2023 In Re: 28949626 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, which sells assistive technology and medical devices manufactured by its foreign 
parent company, seeks to permanently employ the Beneficiary as its vice president (VP) under the 
first preference immigrant classification for multinational executives or managers. See Immigration 
and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § l 153(b)(l)(C). This classification 
allows a U.S. employer to permanently transfer a qualified foreign employee to the United States to 
work in a managerial or executive capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner: (1) will employ the Beneficiary in the United States in a managerial or 
executive capacity, and (2) had been doing business for at least one year prior to the petition's filing 
date. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
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 )(1 )(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3). 
II. ANALYSIS 
The Director determined that the Petitioner did not establish that it will 
employ the Beneficiary in the 
United States in a primarily managerial or executive capacity. The Petitioner states, on appeal: 
"during all relevant times, [ the Beneficiary] is and has been a Manager as defined by the Regulations 
and Statute." Therefore, we will consider the Beneficiary's position in the context of a managerial 
capacity rather than an executive 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 
101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). 
In detennining whether the beneficiary's duties will be primarily managerial, we consider the 
description of the job duties, the company's organizational structure, the duties of the beneficiary's 
subordinate employees, the presence of other employees to relieve the beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding the beneficiary's actual duties and role in the business. 
Any consideration of a beneficiary's claimed managerial capacity will require details about the nature 
and extent of the beneficiary's authority over, and interaction with, subordinate employees, as well as 
the roles performed by those subordinate employees. 
The Beneficiary worked for the Petitioner in the United States as a sales engineer from February 2010 
to July 2015. He then worked for the parent company in South Korea as the sales department director 
until June 2018, when he returned to the United States in L-lA nonimmigrant status to serve as the 
Petitioner's VP. 
The Petitioner filed the petition on March 23, 2021. On Form I-140, asked to specify its "Current 
Number of U.S. Employees," the Petitioner answered "6." With the petition, the Petitioner submitted 
an organizational chart showing the following positions subordinate to the VP: 
• Eastern Regional Sales Manager (vacant) 
• Western Regional Sales Manager 
• ACCUNIQ Division Sales Manager (vacant) 
• Accountant and Human Resources Manager 
o Assistant (vacant) 
The chart also showed two technical support workers, a repair technician, and a vacant internal sales 
position, with no indication of who directly managed or supervised those workers. The Petitioner did 
not submit job descriptions for the staffed positions, and did not explain who performed the duties of 
the vacant positions. 
2 
The Petitioner also provided a job description for the Beneficiary, depicting a different, larger staff: 
[The Beneficiary's] duties will continue to include ... managing and providing 
supervision of both the business[ es] of the company. The Vice President will manage 
and supervise activities of all managers who in turn will manage others or a function 
of the company. The Vice President will manage the Director of Sales Engineering 
who in turn will manage VP of Sales and Marketing and National Sales Director, who 
in turn will manage approximately 10 employees. The Vice President will also manage 
the Business Development Management, who in tum will manage the National Sales 
Manager and two other positions who will be hired soon. In addition the Vice President 
will manage the Accounting and HR Manager who manages an Accounting Assistant. 
Approximately 80% of the time is devoted to this duty. 
The assertion that the Beneficiary's "duties will continue to include" the above responsibilities 
necessarily implies that the Beneficiary already managed the "Director of Sales Engineering" and the 
"Business Development Management," although those positions did not exist when the Petitioner filed 
the petition. Because the job description listed different subordinates than the organizational chart 
submitted at the same time, the job description does not accurately describe the Beneficiary's duties 
and role at the company at the time of filing. 
In a request for evidence (RFE), the Director stated that several of the subordinate positions named in 
the Beneficiary's job description did not appear to exist at the petitioning company. The Director also 
stated that the Petitioner had not shown that any of the Beneficiary's existing subordinates "manage 
any personnel." The Director requested further evidence of the company's staffing and the 
Beneficiary's role in managing subordinate employees. 
In response, the Petitioner submitted an updated organizational chart, dated January 2023, showing 
the following subordinate structure, with the annotation "Additional Workers will be hired within [a] 
few years": 
• VP of Sales/Marketing • Tech Manager 
o Marketing Staff (vacant) o Senior Products Tech Support 
o National Account Manager o Products Tech Support 
o Inside Sales Representative 
■ Assistant (vacant) 
The Petitioner submitted payroll records showing that the organizational chart submitted with the 
petition "showed the [company's] personnel structure ... as it existed at the time the I-140 was filed." 
The Petitioner did not, however, explain why the 2021 job description showed a larger and different 
company structure. The organizational chart, by itself, does not establish that the Beneficiary's VP 
position was or is primarily managerial. 
The Petitioner submitted a revised job description for the Beneficiary, which is broadly similar to the 
original version but incorporates the subordinate positions shown on the 2023 organizational chart. 
The Petitioner also submitted job descriptions for the 2023 subordinate positions. The tech support 
3 
position is the only subordinate position largely unchanged from the original 2021 organizational 
chart. As a result, the 2023 submission does not meet the Petitioner's burden of proof to show that 
the Beneficiary's VP position was primarily managerial at the time of filing in 2021. 
The Director denied the petition, stating: 
According to the Fonn I-140, at the time of filing the pet1t10ner employed six 
individuals. The organizational chart originally submitted with the Fonn I-140 did not 
indicate the petitioner employed any individuals in the position of director of sales, 
engineers, marketing employees, or national sales directors; or that any of the 
individuals listed in the organizational chart managed any personnel. ... 
While the evidence of record shows the petitioner now employs a National Accounts 
Manager and Inside Salesman, they appear to have been hired after the I-140 was 
filed. The Petitioner must establish that all eligibility requirements for the immigration 
benefit sought have been satisfied from the time of the filing and continuing through 
adjudication. See 8 C.F.R. Section 103.2(b)(l). 
The Director also stated that the Petitioner did not explain why the 2021 job description referred to 
several positions that did not exist in the company at that time. 
On appeal, the Petitioner states: "Neither the relevant regulations nor statutes forbid the petitioner to 
be dynamic. It is not unusual for a company's personnel and their duties to change over time." The 
issue, however, is not that the company reorganized or hired new staff after 2021. The issue is that 
the Petitioner's initial description of the Beneficiary's duties rested, in significant part, on his claimed 
authority over positions that either were vacant or did not exist at all when the Petitioner filed the 
petition in 2021. 
The approval of an immigrant petition requires a determination "that the facts stated in the petition are 
true." Section 204(b) of the Act, 8 U.S.C. § l 154(b). The Petitioner must meet all eligibility 
requirements at the time of filing. See 8 C.F.R. § 103 .2(b )( 1 ). Therefore, the job description submitted 
with the petition must c01i-espond to the Beneficiary's actual duties at the time of filing, rather than 
projections of what his duties will later entail after the company has grown and reorganized. Specifics 
are clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 
905 F.2d 41 (2d. Cir. 1990). 
In 2021, the Petitioner stated that the Beneficiary "will continue" to spend 80% of his time overseeing 
a subordinate structure that did not exist at the time. Therefore, the job description from 2021 does 
not meet the Petitioner's burden of proof to establish eligibility at the time of filing. Subsequent 
changes to the company's structure do not establish that the Petitioner met all eligibility requirements 
at the time of filing. See Matter oflzummi, 22 I&N Dec. 169, 175 (Comm'r 1998) ("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 Service requirements"); see also Matter of Katigbak, 14 I&N Dec. 45, 
4 
49 (Reg' l Comm 'r 1971) (requiring that beneficiaries seeking employment-based immigrant 
classification must possess the necessary qualifications as of the filing date of the visa petition). 
The Petitioner has documented its staffing as of the filing date in 2021, but the Petitioner has not fully 
established the hierarchical structure of that staffing and the nature and extent of the Beneficiaiy's 
duties, tasks, and authority over the company's employees in 2021. 
For the reasons discussed above, the Petitioner has not met its burden of proof to establish that the 
Beneficiary's position in the United States was primarily managerial at the time of filing in 2021. We 
will dismiss the appeal for this reason. Because this conclusion is sufficient to detennine the outcome 
of the appeal, we reserve the issue of whether the Petitioner had been doing business for at least one 
year at the time of filing. 1 
ORDER: The appeal is dismissed. 
1 See INS v. Bagamasbad, 429 U.S. 24, 25-26 ( 1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter olL-A-C-, 26 I&N Dec. 516, 526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
5