dismissed EB-1C Case: Social Media

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-D-N- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 30, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which operates a social media network for car enthusiasts, seeks to permanently 
employ the Beneficiary as its CEO/president 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. ~ 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 Petitioner did 
not establish, as required, that it will employ the Beneficiary in a managerial or executive capacity. 
On appeal, the Petitioner asserts that the Director overlooked relevant information and improperly 
excluded consideration of foreign staff that will support the Beneficiary's "managerial/executive" 
role in the United States. The Petitioner maintains that the Beneficiary will manage or direct an 
essential function and oversee subordinates managers and professionals. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the tiling 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) ofthe 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 or a subsidiary or atliliate 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). 
Matter olD-D-N- Inc. 
II. DEFINITIONS 
"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) ofthe Act, 8 U.S.C. § 110l(a)(44)(A). 
"Executive capacity'' is defined as an assignment within an organization in which the employee 
primarily: directs the management of the organization or a major component or function of the 
organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 101(a)(44)(B) ofthe Act. 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definitions of managerial or executive capacity. Champion World. Inc. 
v. INS. 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the Petitioner must 
prove that the Beneficiary will be primarily engaged in managerial or executive 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. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner established that it will employ the 
Beneficiary in the United States in a managerial or executive capacity. 
The regulation at 8 C.F.R. § 204.5(j)(5) requires the Petitioner to submit a statement which clearly 
describes the duties to be performed by the Beneficiary. Beyond the required description of the job 
duties, U.S. Citizenship and Immigration Services (USC IS) reviews the totality of the evidence when 
examining a beneficiary's claimed managerial or executive capacity, 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. Accordingly, our analysis of this issue will focus on the Beneficiary's duties as well as the 
Petitioner's staffing levels and reporting structure. 
A. Duties 
The Petitioner explained that it operates an "English-language web-portal consisting of integrated social 
networking and commerce features based on [its foreign parent company's] proprietary software, 
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Matter of D-D-N- Inc. 
catering to US car owners." The Petitioner indicated that it had also launched English-language mobile 
applications, and was working towards expanding the business to other English-speaking countries. At 
the time of filing in November 2015, the Petitioner stated that the Beneficiary is responsible for 
overseeing the expansion of the business in the United States and will perform the following duties as 
CEO/president: 
1) Supervising and developing banking, payment and credit relationships with major 
financial institutions: 
2) Engage legal, accounting, marketing, and IT professionals to assist the company in 
the rapidly changing market environment; 
3) Direct the organization; 
4) Negotiate contracts and hire employees for the new US-based company; 
5) Direct marketing research and efforts to adapt company's product to the US market; 
6) Establish goals, policies and procedures; 
7) Establish contacts with sub-contractors and customers. 
Another summary of the Beneficiary's duties provided at the time of filing indicated that he would be 
responsible for "formulating effective plans and strategies," "forecasting, budgeting and P&L," 
"launching products and managing projects and building team for business development,'' and 
"developing, sketching, designing and optimizing web site." 
These descriptions are insufficient to establish what the Beneficiary would be doing on a day-to-day 
basis at the time of the petition was filed. Several of the duties, including "establish goals, policies and 
procedures," ''direct the organization," and "formulat[ e] effective plans and strategies," simply 
paraphrase the statutory definition of executive capacity. Conclusory assertions regarding the 
Beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute 
or regulations does not satisfy the Petitioner's burden of proof. 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); Avyr Assocs., Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Further, while the Beneficiary's authority to engage new employees and outside contractors, and to 
oversee the company's financial matters, confirms his senior position in his company, these broad 
responsibilities do not provide insight into the nature of his typical daily tasks. The Petitioner did not 
describe the specific tasks the Beneficiary would perform related to "launching products" directing 
marketing research, or establishing contacts with customers, and without additional information, we 
cannot determine that these tasks would be managerial or executive in nature. Finally, the Beneficiary's 
responsibilities related to developing, designing and optimizing the Petitioner's website are non­
managerial tasks required for the Petitioner to provide a product or service. Overall, the initial job 
descriptions did not suf1iciently delineate the Beneficiary's duties and was not detailed enough to 
establish how he would divide his time between qualifying and non-qualifying tasks. 
The Petitioner provided a lengthier description of the Beneficiary's duties in response to a request for 
evidence (RFE) issued in 2017, but that description did not provide further insight into the nature of the 
Beneficiary's role at the time of filing. Rather, most of the job duties included in the latter job 
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Matter of D-D-N- Inc. 
description referred to the Beneficiary's oversight of Russia-based personnel and departments that were 
not part of the Petitioner's organizational hierarchy when the petition was tiled. The Petitioner did not 
indicate that any foreign staff contributed to the day-to-day activities of the U.S. company at the time of 
filing. In fact, the Petitioner stated in response to the RFE that it underwent a significant change in its 
business and staffing model while the petition was pending that required it to shift to a reliance on its 
parent company's employees. 
For this reason, the job description provided in response to the RFE has limited relevance or probative 
value with respect to our analysis of the nature of the Beneficiary's duties at the time the petition was 
tiled.' 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 ). 
Whether the broad duties attributed to the Beneficiary at the time of filing qualify as managerial or 
executive in nature depends in large part on whether the Petitioner established that he would have 
sufficient subordinate staff to supervise and perform the day-to-day company activities he is claimed 
to manage. As discussed further below, the Petitioner did not show its ability to relieve the 
Beneficiary from significant involvement in the operational tasks required to operate its business at 
that time. 
The fact that the Beneficiary will manage a business as its senior employee does not necessarily 
establish eligibility for classification as a multinational manager or executive. By statute, eligibility 
for this classification requires that the duties of a position be "primarily" managerial or executive in 
nature. Section 101 (A)( 44) of the Act. Even though the Beneficiary may exercise discretion over 
the Petitioner's operations and possess authority with respect to discretionary decision-making, the 
limited description of his job duties in 2015 is insufficient to establish his employment will be in a 
managerial or executive capacity. 
1 The Director nevertheless analyzed the job description provided in response to the RFE, so we will briefly address it. The 
Petitioner indicated that the Beneficiary would spend a total of 31% of his time on "personal engagement and negotiations 
with big customers" and potential investors, supervising engagement with local businesses, "participating in auto shows and 
local meetups,'' and organizing marketing events in California. As the Petitioner no longer claimed to have any marketing 
staff in the United States, it appears that the Beneficiary would personally perform these non-managerial marketing and 
business development activities. Almost all other duties attributed to the Beneficiary at that time involved supervision of 
foreign-based personnel, but these duties were described in general and repetitive tenns. For example, the Petitioner listed 
two separate but overlapping duties noting the Beneficiary's oversight of the Russia-based director of business development 
and his team, and included two separate duties for ·'supervising of team work by daily communications with team members'' 
and "participating in weekly planning meetings" involving department heads and key team members. 
For these reasons, we agree with the Director that the description provided in response to the RFE did not sufficiently 
describe the Beneficiary's day-to-day tasks at that time. 
4 
Matter of D-D-N- Inc. 
B. Staffing and Organizational Structure 
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 ofthe overall purpose and stage of development ofthe organization. Section 10l(a)(44)(C) of 
the Act. 
At the time of filing, the Petitioner indicated that it employed the Beneficiary, an operations 
manager and a head of strategy who reported to the Beneficiary, and an editor/marketing associate 
who reported to the Beneficiary· s subordinates. The Petitioner provided evidence that it had 
previously employed a public relations assistant/customer support representative who had left the 
company in August 2015, but did not state who had taken over his job duties. The Petitioner 
provided its payroll records and state quarterly wage reports through July 2015, but the record does 
not contain evidence of wages paid to employees at the time of filing to corroborate the initial 
organizational chart. 
The Petitioner indicated that the operations manager's 2 duties included "improving of the 
operational systems, processes and policies," "coordination of business operations," "overseeing of 
activities directly related to making products or providing services," "interaction with partners. 
agents, vendors, and service providers," "managing staff: preparing work schedules and assigning 
specific duties," and "managing adaptation of the [Petitioner's] product for the U.S. market." These 
duties are vague and provide little insight into the nature of the tasks this employee performed. 
Further, this individual's resume includes a very different description of his role within the 
company. He indicates that he used various tools to monitor and investigate suspicious activities on 
the company's PayPal and bank accounts; reviewed and moderated all user-generated content and 
user profiles within forums, comments, images, videos and audio; managed the banned user process 
and tracked and removed previously banned users; monitored effective benchmarks for measuring 
moderation and user-generated contend volume; and reported on the effectiveness of the moderation 
policy. Based on this description it appears that this employee spent most of his time monitoring 
posts and comments in the Petitioner's community forums, and not performing superv1sory or 
managerial duties as suggested by the Petitioner's broad description of the role. 
The Petitioner provided a similarly vague description of duties for the "head of strategy" employee, 
noting that she was responsible for •·general supervision ... pursuant to the orders, advice and 
direction of employer." assisting with tasks needed to keep a client project or campaign running 
smoothly," tracking projects and team activities, and assisting with client communications and 
marketing materials. 
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 
2 The record indicates that this employee later assumed the title/position of"VP, Trust and Safety Manager.'' 
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Matter of D-D-N- Inc. 
managerial employees. Contrary to the common understanding of the word "manager," 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) ofthe Act. 
The Petitioner did not submit sufficient evidence to show that the operations manager or head of 
strategy acted as supervisor or managers at the time of filing. While the Petitioner indicates that it 
had one lower-level employee, an editor/marketing associate, the submitted job descriptions do not 
establish that either of the Beneficiary's subordinates performed supervisory or managerial duties. 
The Petitioner refers to all U.S.-based staff as "professional" but it did not provide evidence of 
educational credentials for these employees. The operations manager's resume indicates that he has 
a bachelor's degree in professional aeronautics, but, as noted, it appears that he was mainly 
responsible for reviewing and monitoring user generated content on the Petitioner's web site and the 
Petitioner did not establish that such duties require completion of a bachelor's degree. For these 
reasons, the Petitioner did not establish that the Beneficiary qualified as a personnel manager at the 
time of tiling. 
In response to the RFE, the Petitioner indicated that it had two U.S.-based staff as of 2017, and that 
the Beneficiary would be relying on 13 dedicated staff in the Russian office that provide 
"exclusively full time support"' to the U.S. operation. The Petitioner explained the reason for the 
change, noting that ··we realized that the business is not ready for English-speaking users and re­
focused on Russian-speaking users in the United States and other countries" and that "all staff 
temporarily had to be native Russian-speaking." Although the Petitioner contends on appeal that the 
Director erred by not considering the contributions of the Russian staff, the Director specifically 
noted the inclusion of Russian statT in the Petitioner's organizational chart was a change that 
occurred after the filing of the petition. 4 The Petitioner raises no objection to this finding and has 
not claimed that the Beneficiary oversaw Russian staff dedicated to the U.S. company when the 
petition was filed. Therefore, we will not further address the Petitioner's 2017 staffing levels, the 
Russia-based staff, or whether the Beneficiary's supervision of such statT qualifies him as a 
personnel manager. 
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 I 0 I (a)(32) of the Act, states that "[t]he term pr()(ession 
shall include but not be limited to architects. engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools. colleges. academies, or seminaries." Here, the Petitioner does not claim that any positions 
subordinate to the Beneficiary require a bachelor's degree, nor has it submitted evidence of educational credentials for 
any subordinate staff. 
4 It does appear that the Director overlooked the Petitioner's explanation that some work perfonned by two former U.S. 
employees had been transferred to Russian-speaking employees overseas. We find this explanation credible. but our 
focus here is on whether the U.S. staff in place at the time of filing would be sufficient to relieve the Beneficiary tl·om 
significant involvement in non-managerial and non-executive duties. 
Matter ofD-D-N- Inc. 
The Petitioner's primary claim on appeal is that the Beneficiary manages or directs an essential 
function of the company. 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 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 ofG- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
The Petitioner states that the Beneficiary manages market development in the United States, which is 
the essential function of the company. The Petitioner emphasizes that the Beneficiary will act at a 
senior level with the organization and will have discretionary authority over these matters. 
However, its claim that he will primarily manage, as opposed to perform, the function is predicated 
on its claim that he will rely on two U.S.-based staff and "18 [sic] professional and managerial 
employees in the foreign office'' that support the function. The Petitioner has not articulated a claim 
that the Beneficiary qualified as a function manager at the time of filing, when his support staff was 
limited to, at most, three subordinates whose duties have not been clearly defined. Absent a clearer 
description of the Beneficiary's actual duties at the time of filing, the duties performed by those 
subordinate personnel, and evidence confirming the employment of those staff as of November 
2015, we cannot determine that the staff in place at the time of filing was sufficient to relieve the 
Beneficiary from significant involvement in non-managerial duties associated with the function he is 
claimed to manage. Whether a beneficiary is a "function" manager turns in part on whether the 
Petitioner has sustained its burden of proving that their duties are "primarily" managerial. See 
Matter ojZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). 
The Petitioner has also claimed that the Beneficiary will be employed in an executive capacity. The 
statutory definition of the term '·executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization. and 
that person's authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the 
statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. Inherent to the definition, the organization must have a subordinate 
level of managerial employees for a beneficiary to direct and they must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because he "directs" the enterprise as the owner or sole managerial employee. 
The Beneficiary's overall discretionary authority over the company is noted, but the Petitioner has 
not established how he would spend his time primarily on the broad policies and goals of the 
business, rather than participating in its day-to-day operations. For the reasons already discussed, 
the evidence does not support the Petitioner's claim that he would perform primarily executive 
duties for the petitioning company when the petition was filed. The Petitioner has not established 
Matter of D-D-N- Inc. 
how the work it now claims is performed by 15 foreign and U.S. staff was allocated among the 
Beneficiary and his three-person staff as of the date of tiling. 
Section 101 (a)( 44 )(C) of the Act requires that USCIS must take into account the reasonable needs of 
the organization in light of the overall purpose and stage of development of the organization if 
staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity. However, it is appropriate for USCIS to consider the size of the petitioning 
company in conjunction with other relevant factors, such as the absence of employees who would 
perform the non-managerial or non-executive operations of the company. Family Inc. v. USCIS, 469 
F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Here, the Petitioner has not submitted sufficient evidence to establish that it had a sufficient staff in 
place at the time of filing to relieve the Beneficiary from performing non-qualifying duties 
associated with development of its product in the U.S. market. The Petitioner's claim that it has a 
reasonable need for the Beneficiary to perform primarily managerial or executive duties is once 
again based on its post-tiling organizational structure and not the structure of the business as it 
existed when it tiled this petition. 
For the reasons discussed above, the Petitioner has not met its burden to show that his duties would 
be primarily managerial or executive in nature as of the date of filing. 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that it the Beneficiary would be 
employed in the United States in a managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter ofD-D-N- Inc., ID# 1208533 (AAO Apr. 30, 2018)