dismissed EB-1C Case: Software

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-S-, INC. 
Non· Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 19,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
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PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a data and information management software company, seeks to permanently employ 
the Beneficiary as its "District Systems Engineering Manager," 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: (1) it will employ the Beneficiary in the United States in a managerial 
or executive capacity; and (2) that the Beneficiary was employed abroad in a managerial or 
executive capacity prior to his entry to the United States to work for the Petitioner as a 
nonimmigrant. 
On appeal, the Petitioner asserts that the record establishes by a preponderance of the evidence that 
the Beneficiary was employed abroad, and will be employed in the United States, in a managerial 
capacity. 
Upon de novo review, we will withdraw the Director's finding with respect to the Beneficiary's 
proposed U.S. employment.' However, as the Petitioner has not overcome the remaining ground for 
denial, 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. 
1 We find that the Petitioner submitted sufficient evidence to establish that the Beneficiary will primarily manage a 
department or component of the company, supervise the work of subordinate professional staff with authority to make or 
recommend personnel actions, and exercise discretion over the day-to-day operations of his dcpartmcnl. Accordingly, 
the Petitioner has established that he will be employed in the United States in a managerial capacity as defined at sec'tion 
IOI(a)( 44)(A) of the Act, 8 U.S.C. § l!Ol(a)( 44)(A). 
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Matter ofC-S-, Inc. • 
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. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The sole issue to be addressed is whether the Petitioner established that the Beneficiary was 
employed abroad in a managerial capacity for at least one year in the three years preceding his e ntry 
to the United States as a nonimmigrant. 2 The Petitioner does not claim that the Beneficiary was 
employed abroad in an executive capacity. · 
A. Definition 
"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 manag erial employees , or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or function s at a senior level within the 
organizational hierarchy or with respect to the function manag ed; and exercis es discre tion ove r 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). 
The Petitioner must show that the Beneficiary performed certain high-level resp onsib ilities 
consistent with the statutory definitions of managerial capacity. Champion World, Inc. v. INS, 940 
F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the Petition er mu st prove that 
the Beneficiary was primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the foreign entity's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 
1316 (9th Cir. 2006) ; Champion World, 940 F.2d 1533. 
B. Function Manager 
The Petitioner asserts that its foreign affiliate employed the Benefic iary in the position of " Principal 
Systems Engineering Lead " from April 2013 until December 2014. The Petitioner state d that he was 
responsible for managing "the essential function of planning and overseeing the implementation of 
technical strategies for key accounts in 
using his knowledge of the organization and its proprietary Simpana software." The 
Petitioner has consistently claimed that the Beneficiary was employed abroad as a function manager. 
2 The Beneficiary was initially admitted to the United States in 2014 as an L-lB intracompany transferee in a specialized 
knowledge capacity. In March 2016, U.S. Citizenship and Immigration Services (USCIS) granted him an extension of 
stay and an amendment of his nonimmigrant status from L-1 B to that of an L-IA manager or executive. 
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Matter ofC-S-, Inc. 
The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate stafT but instead is primarily responsible for managing an "essential function" 
within the organization. See section Wl(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 C­
Ine., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
Beyond the required description of the job duties, we review the totality of the evidence when 
examining the claimed managerial capacity of a beneficiary, 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 
evidence contributing to understanding a benefi~iary's actual duties and role in a business. In the 
case of a function manager with no direct subordinates , other factors considered may include a 
beneficiary's position within the organizational ·hierarchy, the depth of a company's organizational 
structure, the scope of a beneficiary's authority and its impact on a company' s operations, the 
indirect supervision of employees within the scope of the function managed, and the value of the 
budgets, products, or services that a beneficiary manages. See Matter of Z-A-, Inc., Adopted 
Decision 2016-02 (AAO Apr. 14, 2016). 
1. Duties 
The Petitioner initially submitted an overly broad job description of the Beneficiary's last position 
abroad and was asked to provide further explanation of his specific daily tasks and the percentage of 
time he spent on each duty. In response to the Director's request for evidence (RFE), the Petitioner 
submitted a letter from its foreign affiliate describing the Beneficiary's "specific daily job duties" as 
follows: 
50% of his time 
• Managed new and ex1shng client engagements to enhance product 
offerings, effectively driving sales and revenues and was responsible for 
directing cross-functional team members on all salient technical, business, 
operational and financial efficiencies of in order to best meet client 
needs. 
• Oversaw meetings with customers to understand their current technical 
environment, key business issues/ dri~ers and future technology requirements, and 
set strategy and business solutions. 
15% of his time 
• . Oversaw technical trammg to partners, explaining technical capabilities and 
business benefits of solutions and marwged the gathering of feedback from cross-
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Matter ofC-S-, Inc. 
functional teams in order to. craft plans and strategi es that fostered regional 
growth and met [the company's] obje ctive. 
25% of his time 
• Led interaction s between [the comp any 's] various departm ents in order to manage 
and meet custom er expectations, ensuring that [the company] provid ed optimal 
solutions to customer s' technical and business requirements and was also 
responsible for managing strong relationships between strategic clients, key 
par tners and regional syste m integrator s. Optimized the relations hip betw een [the 
company] and its clients to attain a 
substa ntial numb er of sales and reve nue for 
the .. . organization. 
10% of his time 
• Recruited and hired the technical team for [the region] by leadin g a nd 
overseeing the selection of candid ates, onboarding [systems engineers ] for 
ex isting teams in Russia and India , building of teams in Poland, Israel and Turkey 
and mentoring and training the technical sta ff. 
The foreign entity's human resources director for the region confi rmed that the Beneficiary 
did not have any direct report s in his position. She stated that "he served as a critical se nior member 
of the organization, serving as a functional manage r, holdin g a position within [the compa ny's ] 
\ advisory board, and also played an essential role in forming the technical team for [the company's ] 
offices in the East region, by leading the hirin g, onboarding and training proces s." 
In the denial decision , the Director found that the Petitioner did not provide a suffici ent desc ription 
of the Beneficiary's day-to-d ay duties, and noted that some of the liste d duti es sugges t that he was 
working in a sales position. On appeal, the Pe~iti o ne r reiterates that the Beneficiary managed the 
essential function of "plan ning and overseeing the implementation of tec hnical strategies for key 
acco unts." It maintains that the previ ous ly submitted ev idence was su fficient to meet its 
burden of proot: and doe s not address the Director's concern s regardi ng the Beneficiary's position 
description . 
We agree with the Director 's determination that the submit ted duty description is insufficient to 
establish that the Beneficiary primarily manag ed an essential functio n. The Petitioner did not clearly 
. describ e the duties the Beneficiar y performed, nor did it suffici ently define the essential function he 
is claimed to have manag ed. For example, the' Petitione r stated tha t he "ove rsaw" meetings with 
customer s to understand their business issues and technolog y require ments and set st rategy and 
business solutions, but it is not clear what type of oversight he exe rcised to differentiate this 
responsibility from the non-m anage rial, pre-sales requirements gathering duties typic ally pe rformed 
by an experienc ed systems engineer. 3 
3 For exa mple, the Petitioner indicates that its enterpris e syste ms engin eers, who m the Bencriciar y supervises in his 
curren t U.S.-base d position, formulate acco unt strategic~ and engage with custome rs to und erstand their technic al, 
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Matter ofC-S-, Inc. 
The description also lacks sufficient detail regarding the Benefici ary ' s role in managing client 
engagements and does not provide insignt into the nature of the specific tasks he performed to 
"enhance product offerings " or drive sales revenues. As discussed further below, the Petitioner 
states that the Beneficiary had no direct subordin ates, and it declined to identif y the "cross functional 
team member s" that it claims he directed "on all salient technical , business, operational and financ ial 
efficiencies. " Together, these first two responsibilities accounted for 50 percent of his time so it is 
particularly critical that the Petitioner clearly demonstrate how the dutie s are consi stent with the 
management of the claimed essential function. , 
The Petitioner indicated that the Beneficiary "oversaw" technical training to partner s by "ex plaining 
technical business benefits of solutions ," and "managed " the gathering of feedba ck from "cross 
functional teams ." Again , the Petitioner did not explain who delivered the train ing or who gathered 
the feedback the Beneficiary used to "craft plans and strategies," nor did it provide any exam ples of 
plans or strategies he created. Further, it did not clarify how expl aining the benefit s of technical 
solutions is a managerial duty ; rather than a pre-sales duty. Simil arly, it is uncle ar what specific 
managerial duties the Beneficiary performed to "optimize" the relationship between the company 
and customers in order to attain sales, or to "lead interactions " between departments to provide 
optimal solutions. Reciting a beneficiary 's vague job respon sibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed descrip tion of the beneficiary' s daily 
job duties. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp . 1103, 1108 (E.D.N .Y. 1989), a.ff'd, 905 F.2d 41 (2d. Cir. 1990). 
Here, the Petitioner has not provided the necessa ry det.ail or an adequate explanation of the 
Beneficiary's activities in the course of his daily routine. 
The Petitioner has documented the Beneficiary 's role in making personnel recomm endations in the 
region , but this responsibility accounted for only 10 percent of his time. Whethe r a 
beneficiary is a "function" manage r turns in part on whether the Pet itioner has sustained its burden 
of proving that their duties are " primarily" managerial. See Matt er of 2-A-, Inc., Ado'pted Decision 
2016-02 (AAO Apr. 14, 2016). Overall , the Petitioner's description of the Beneficia ry's last 
position abroad did not demonstrate that he primarily p.erformed managerial duties, nor did it clearly 
define the essential function he was claimed to manage. 
2. Foreign Entity's Organi zational Structur~ 
:·. 
In the requ est for evidence, the Director advised : the Petitioner that its function man ager claim must 
be supported by evidence that the foreign entity . had qualified employees to perfo rm the day-to- day 
duties of the function, and that the Beneficiary acted in a senior leve l with respect to the foreign 
entity 's organizational hierarchy or the function managed. 
Although the Director also a~ked the Petitioner to provide an organizational chart for the foreign 
entity showing the Benefici ary's placement within the company' s hierarchy and identifying other 
finan cia l, operational , and busine ss issues , and perform · sev eral other duti es that are similar to those listed in the 
Beneficiary ' s job description with the foreign entity. 
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Matter ofC-S-, Inc. 
employees within his division , the Petitioner did not submit this evidence . The human resources 
director's letter mentioned that the Beneticiary worked with the "regional m anager and director of 
operations" on recruiting matters and the RFE response included evidence of the Beneficiary's 
participation in interviews of technical staff and recommend ations regarding personnel hires. 
However, this evidence alone does not establish the Beneficiar y's senior placement in the 
organizational hierarchy. The Petitioner mentioned that a member of the region ' s advisory board, 
but did not identify the members of the advisory board or the role of that board within the 
organization, or otherwise show how the Beneficiary held a senior role within the organiz ation or 
wit~in the function of planning technical strategies for accounts in the region. 
The Director also emphasized that "no information was given on how the organization employed 
qualified employees who performed the day-to-day job duties of the function." We agree with the 
Director's finding that such information is critical to the Petitioner' s function manager claim. The 
Petitioner has not addressed this deficiency on appeal and the record does not contain a descr iption 
of the foreign entity's organizational structure or staffing during the Beneficiary 's period of 
employment abroad. 
Based on the foregoing, the Petitioner has not clearly defined the essential func tion the Beneficiary 
managed or his day-to-day job duties. The record does not clearly demon strate that he occupied a 
senior position within the foreign entity or with respect to the region technical strategy 
planning and implementation function. Further , the Petitioner has not provided evidence 
demonstrating that someone other than the Beneficiary performed the non-qualif ying duties 
associated with that function. In fact, several of duties the Beneficiary perform ed abroad are similar 
to those of the non-managerial employees that he currently super vises in the Unit ed States. 
As a result, the Petitioner has not met its burden to establish that the Beneficiary primarily 
performed managerial duties or that he was employed by its foreign affiliate as a function manager 
prior to his transfer to the United States as a nonimmigrant. 
lll. CONCLUSION 
The appeal will be dismissed as the Petitioner has not established that the Benefici ary was employed 
abroad in a managerial capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-S-lnc., ID# 1367016 (AAO June 19, 2018) 
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