dismissed EB-1C Case: Portfolio Management

MATTER OF A- □ 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG 5, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a~ !company, seeks to permanently employ the Beneficiary as a portfolio 
manager under the first preference immigrant classification for multinational executives or managers. 1 
See 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 Texas 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 qualifying 
professional managerial role" abroad and in the United States . 
Upon de nova review, we find that the Petitioner has not established that the Beneficiary's U.S. 
employment will be in a managerial capacity. Therefore, we will therefore 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 I-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 
1 The record shows that the Beneficiary is currently in the United States on an approved H-lB nonimmigrant visa and is 
working for the Petitioner in the same position that is now being offered in the instant petition . 
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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. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Petitioner claims that the Beneficiary would be employed in the United States as a function 
manager, thereby indicating that he would not primarily assume the role of a personnel manager whose 
main concern is to supervise and control the work of other employees. 2 Therefore, our primary 
objective is to determine whether the Petitioner provided sufficient evidence to support its claim. 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 term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section 10l(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 manage the I I I I function," which it claims "plays an essential role in [the 
Petitioner's] ~-------~ Line of Business."' The Petitioner did not state or provide 
evidence to demonstrate that this line of business is an essential activity of the organization and 
provided no further discussion of the I I function, other than to state that the Beneficiary's team 
generates approximately $4 million in revenue for the U.S. entity by managing this function. The 
Petitioner also stated that in carrying out his role as function manager, the Beneficiary would "direct, 
manage, and oversee" a team of employees who will carry out quality assurance job duties in support 
of the Petitioner's I ~oftware applications. 
The Petitioner provided a job duty breakdown indicating that the Beneficiary would allocate 5% of 
his time each of four categories - operational management, strategic vision/direction, process 
management, technical management, and "other management duties"; he would allocate 10% to each 
of three categories - financial management, functional management, and people management; 20% to 
client management; and the remaining 25% to project management. The job duty breakdown indicates 
2 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. Section 101 ( 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). 
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that the Beneficiary's proposed pos1t10n would include overseeing subordinate employees, 
maintaining client contact, and engaging in operational activities to ensure client satisfaction. 
The Petitioner also provided an organizational chart showing the Beneficiary in his position with 
respect to the function he has and would continue to manage. The chart shows the managing director 
at the top tier of department's organizational hierarchy, followed by the senior manager at the second 
management tier. The Beneficiary is depicted below the senior manager at the third tier, overseeing 
the remaining department employees, who were identified as senior software engineers, software 
engineers, and team leads, respectively. 
In response to a request for evidence (RFE), the Petitioner reiterated the claim that the Beneficiary's 
role with the U.S. entity has and would continue to be that of a function manager. Notwithstanding 
the latter claim, the Petitioner stated that the Beneficiary "will direct, manage, and oversee a dedicated 
Team" who will assume a "quality assurance role" by carrying out functions to support the Petitioner's 
~-------~ software applications. The Petitioner also stated that the function generates 
approximately $4 million in revenues for the organization. 
The Petitioner provided another organizational chart depicting the same staffing hierarchy as described 
above and claimed that the Beneficiary would function at a senior level within the organization. The 
Petitioner stated that the Beneficiary will engage in "continuing communication with, and work in 
direct coordination with" a managing director and a senior manager in the course of meeting his 
responsibilities. 
Further, the Petitioner provided a job duty breakdown that was nearly identical to the original job 
description, distinguished only by the fact that the new job description showed the Beneficiary 
allocating 10% of his time to operational management, as opposed to 5%, as indicated in the original 
job description, which allocated 5% of the Beneficiary's time to "Other Management Duties," a 
category that was not included in the new job description. The Petitioner also listed duties that are 
characteristic of a personnel manager, stating that the Beneficiary will supervise and control the work 
of other professional employees and exercise control over the daily operations of his team. 
In the denial decision, the Director determined that the Petitioner did not provide evidence of the 
respective educational credentials of the Beneficiary's subordinates or establish that the subordinates' 
positions had educational requirements that are consistent with professional employees. 3 
On appeal, the Petitioner maintains the claim that the Beneficiary would be employed in a managerial 
capacity and asserts that he will manage "complex IT project components" and supervise a team of 
professional employees. The Petitioner also contends that the Beneficiary has "exclusive managerial 
3 In evaluating whether a 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. 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 IO I (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 subordinate employee. The possession of a bachelor's degree by a subordinate employee 
does not automatically lead to the conclusion that an employee is employed in a professional capacity. 
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control, discretion over day-to-day operations, and substantial decision-making and supervisory 
authority over his dedicated Team." 
B. Analysis 
We find that the Petitioner has not provided sufficient evidence to demonstrate that the Beneficiary's 
emRloyment meets the criteria of a function manager. First, the Petitioner has not demonstrated that 
the 1 !function the Beneficiary manages is essential to the organization. See Matter of G- Inc., 
Adopted Decision 2017-05. Although the Petitioner points to the fact that the function generates $4 
million in revenues, this factor alone is not sufficient to demonstrate that it is a "core activity" of the 
organization. Id. at 3 ("Construing the term 'essential function' as a core activity of an organization 
is consonant with Congress's purpose in creating this classification: to facilitate the transfer of key 
managers or executives within a multinational organization."). We note that this amount is only .25% 
of the organization's net revenues, which total approximately $16 billion. The Petitioner did not 
otherwise describe the function or explain how it is core to the organization. 
Further, despite claiming that the Beneficiary functions at a senior level within the organization and 
will communicate and coordinate with the senior management of his department, the Petitioner did 
not establish that these characteristics reflect the Beneficiary's level of seniority within the U.S. 
organization or with respect to the function he manages; nor did the Petitioner provide an 
organizational chart depicting the Beneficiary at a top-level placement within the organization as a 
whole. 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 organizational chart that Petitioner did 
provide is limited to the specific department where the Beneficiary's position is located and shows 
that there are two levels of management above the Beneficiary, whose position is only senior with 
respect to the employees he is claimed to oversee. There is no evidence that the Beneficiary's position 
is at a senior level either within the organization or with respect to the function he manages. 
Lastly, the Petitioner provided a job description that does not show how much time the Beneficiary 
would spend managing the function, as opposed to performing the underlying duties related to that 
function. Although the Petitioner provided a percentage breakdown for the Beneficiary's proposed 
position, it did not allocate a specific percentage of time to individual job duties. Instead, the Petitioner 
allocated a percentage of time to each of ten general categories, which included both managerial and 
non-managerial activities. The Petitioner stated that the Beneficiary would work with the client to 
address "operational challenges" and manage and mitigate risks, carry out "corrective actions" with 
respect to financial management, create a business continuity plan, "[e]stablish communication 
channels with the client . . . to guarantee client satisfaction," train subordinate team members, 
"[ c ]onduct regular connects with the client" and generate and present proposals, and develop and 
demonstrate the Petitioner's capabilities and services. The Petitioner did not, however, state precisely 
how much time the Beneficiary would allocate to these non-managerial job duties. 
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); Matter of Church Scientology Int'!, 19 I&N Dec. 593, 604 (Comm'r 1988). As 
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the Petitioner did not specify how much time the Beneficiary would allocate to non-managerial job 
duties, we cannot conclude that the Beneficiary's time would be primarily spent performing job duties 
of a managerial nature. 
The Petitioner also focuses on elements of a personnel manager in the appeal brief: stating that the 
Beneficiary will oversee the work a professional team of employees, have discretion over employee 
work assignments and performance evaluations, and be charged with hiring and firing employees. 
However, the Petitioner has not provided evidence to demonstrate that the Beneficiary's time would 
be primarily allocated to these personnel management functions, nor has the Petitioner provided 
evidence of the level of education required by their positions. In evaluating whether a 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. 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"). 
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 Ar=]ID# 4277341 (AAO Aug. 5, 2019) 
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