dismissed EB-1C Case: Software Development

(b)(6)
u~s. Departinent of Hcirneland Seeurity 
U.S. Citizenship and lrilriligration Seivice1 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services .. 
DATE: NOV 0 6 2013 OFFICE: NEBRASKA SERVICE CENTER. FILE: 
INRE: Petitioner: 
Beneficiary: 
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PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
I. 
INSTRUCTIONS: --- - ... - -\ . 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor es4t.blisb 
agency policy through non-precedent decisions. If you believe the AAO incorrectly appHed current law ot 
policy to your case ot if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this detision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other reqpirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thzo·. .. . 
'fRonR-e-
Chief, Administrative Appeals Office 
w-ww.l.lsds;gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the nonimmigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a limited liability company orga11i~ed in the State of Ohio that is engaged in software 
development, licensing, and related consulting services. The petitioner states that it is an affiliate of 
located in Russia. The petitioner seeks to employ the beneficiary as its chief executive 
officer (CEO). Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(l)(C) of the Immigration artd Nationality Act (the Act); 8 U.S.C. 
§ 1l53(b)(l)(C), as a rtmltinational executive or manager. 
The director denied the petition, finding that the petitioner had not established that the beneficiary will be 
employed in an executive or managerial capacity in the United States. 
On appeal, counsel asserts that the petitioner has established by a preponderance of the evidence that the 
benefkia:cy primarily performs executive or m~agerial duties, noting that the director's conclusion wa,s in 
error given the evidence submitted. 
I. The Law 
Section 203(b) of tile Act st4tes in pertinent part: 
(1) Priority Workers. --Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the UniteQ. St4tes 
under this subparagraph, has been employed for at least 1 year by a firm ot 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
, seeks to enter the United Sta.tes in order to continue to tender services to the . - -· ,. ' -·· ·-··· . ·-·. . . () ... 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, ot a.n affiliate.ot subsidiary of that entity, 
and whO are coming to the United St:J.t¢s' to work for the sa:me entity, or its affiliate or subsidiary. 
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A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
st;~tement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
T9e term "managerial capacity'' means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 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; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supel'Vised, functions at a senior level within the organizational 
hierarchy or With respect to the functiog managed; agd 
(iv) 
cl 
exercises discretion over the day-to-day operations of the activity ·or 
function for which the employee has authority. 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 super\lised ate 
professional. 
Sectionl0l(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: •, 
The term "executive capacity" means an assignment within an . organization in which the 
employee primarily--
(i) directs the magagement of the organization or a major component or 
function of the organization; 
(ii) establishes the goals and policies of the ()rganization, component, or 
function;· 
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(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders <;>f the organization. 
II. The Issue on Appeal 
·The sole issue to be addressed is whether the petitioner has established that the beneficiary will be employed 
in a quaJifying managerial or executive capacity in the United States. 
In denying the petition on this basis, the director noted that the petitioner haq submitted a vague description 
of duties for the beneficiary in his capacity as chief executive officer of the petitioner. Further, the director 
stated that the petitioner had not submitted sufficient evidence_ to demonstrate thllt the beneficil1ry' s 
Sllbordjnates were ma.nagers, supervisors 
or professionals. 
On appeal, counsel contends that the beneficiary's duties in the United States were sufficiently detailed, and 
asserts that the beneficiary is not primarily performing operational tasks but directing management and 
establishing goals and policies of the organization. Counsel states th~t the director erred by ded~ning to 
covsider the petitim_ter's future hiring plans. Further, counsel asserts that the director erroneously .concluded 
that the beneficiary's subordinates are not professionals and had no basis for determining that these 
subordinate positions do not require a baccalaureate degree. Counsel states that based upon the detailed duty 
descriptions provided for _each subordinate, their levels of education, and the salaries paid to the 
subordinates, the petitioner has established that the beneficiary supervises professiov;J,ls; Fillally, CotiD_sel 
cootends that the director placed undue emphasis on the size of the petitionins company and failed to 
examine the totality of the record, including the size and scope of the overseas operations. 
In sum, counsel asserts that the petitioner has established by a prepo:nden1nce of tQ.e evidence th;:tt it will 
employ the beneficiary in a qualifying managerial and executive capacity. 
As niferenced by counsel, the ''preponderance of the evidence'' standard requires that the evidence 
demonstrate that the applicant's claim is "probably true," where the determination of "truth" is made based on 
the factual circumstances of each individual case. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) 
(citing Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 198?)). In evaluating the evidence, the truth is to 
be determined not by the quantity of evidence alone but by its quality. Id. Thus, in adjudicating the 
application>pursuavt to tile preponderance of the evidence standard, the director rn11st examine each piece of 
evidence for relevance, probative value, and credibility, both individually and within the context of the 
totality of the evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible 
evidence that le(lds the director to believe that the claim is "probably true" or "more likely than :not," the 
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applicah~ or peti~ioher h<~.s satisfied the standard of proof. See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) 
(discussing ''mote likely tban not" as a greater than 50 percent probability of something occurring). If the 
director can articulate a material doubt, it is appropriate for the director to either request additional evidence 
or, if that doubt leads the director to believe that the claim is probably not true, deny the application ot. 
petition. 
Upon review of the petition and the evidence, and for the reasons discussed herein, the petjtionet h11~ not 
established by a preponderance of the evidence that it will employ the beneficiary in a qualifying managerial 
or executive capacity. 
In order to determine whether the beneficiary would be employed in a qualifying executive or managerial 
capacity, U.S. Citizenship and Immigration Services (USCIS) will look first to the petitioner's description of 
the job duties. See 8 C.F.R. § 204.50)(5). In the RFE, the director requested th<~.t tbe petitioner provide a 
very detailed description of the bynefieiary's proposed duties iii the United States, including an estimate of 
the percentage of time the beneficillf)' · would dedicate to each specific duty. In response, the petitioner 
providec1 tbe followjQg explanation of the beneficiary's duties in his capacity as CEO, including percentages 
of time spent on each duty category as{ollows: 
Determine corporate strategy versus customers, competitors and threat of substitute 
products (10% ofhis time). 
• Sets goals and targets .for 
General Manager for managing Sales Managers and for 
managing sales 
o Directs. networking with key partners in United States 
• Sets goals and targets abou~ penetrating new marlcet and niches 
• Determines key parameters 
for custom development. projects 
• Sets and manages ways to build relationships and contracts for Trading View 
Product 
Direct ::tnd coordinate compa,ny's financial and budget activities to fund operations, 
maximize investments, and increase efficiency (20% of the time). 
o Sets goals for General Manager about retail sales levels and custom products 
Analy~e operations to evaluate perfopnance of a company and st[a]ff (20% of the 
time) 
• Receives saies reports from General Manager a:nd analyzes productivity of the 
company 
Direct, plan, CI.Il.d implement policies, objectives, and activities of organizations or 
businesses to ensure continuing operations, to maximjze returns on investments, and 
to incte(lse productivity (10% of the time). 
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• Develops with General Manager general sales strategy to optimize a.nd improve 
sales processes 
• Determines company's general sales policy 
• Determines company's sales policy regarding custom development projects ' 
Approve contracts and agreements with clients, distributors, and other orgaoizl!tional 
entities (1 0% of the time). 
• Approves key parts in the most important contracts 
• Contacts key persons from other companies when necessary 
Review reports submitted by staff members to recommend approval or to suggest 
changes (1 0% 6f the time) 
• Analyzes reports ~ade by General Manager 
• Conducts meetings with General Manager and Sales Managers 
Appoint cJepcmment heads or managers and assign or delegate respon_sibilities to 
them (1 0% of the time) 
• Sets and delegates tasks for General Manager and Sales Managers 
• Personally controls execution of key projects 
Pirect hOmC!.Il res0\rrces actjvities, including th~ sel~tion of directors and other high 
level staff (1 0% of the time) 
• Approves selection of staff members and hiring as represented by General 
Manager 
• Sets company's HR policy. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show thlJ.J toe 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner rrnl_st prov~ th~t the ~neficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
On appeal, counsel asserts that the beneficiary's proposed duties in the United States, as described above, are 
sufficiently detailed to establish that he performs primarily e~ecutive tasks. Counsel's assertion is not 
persu_li_sive. In fact, toe duties submitted by the petitioner in response to the director's request for a "very 
detailed'' description of duties were little different than those submitted at the time of filing, which the 
director had already reviewed and found to be insufficient. Reciting the beneficiary's vague job 
responsibilities or broadly-Cast business objectives is not sufficient; the regulations require a detailed 
- description of the beneficiary's daily job duties. The duties offered by the petitioner, such as sett_ing goals 
lJ,:QQ wge(s for the general manager, directing networking with key partners, determining key parameters for 
custom development projects, setting and managing ways to build relationships, determining the company's 
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sales policy, and setting and delegating tasks, are overly vague and provide little probative value as to the 
beneficiary's ~ctu.al day-to-day activities. The petitioner does not specifically describe the purported goals or 
targets set, sales policies established, or specific tasks delegated. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature. Overall, the 
petitioner has failed to provide any detail or explanation of the ·beneficiary's activities in the course of his 
daily routine. The actual duties themselves will reveal the true nature of the employment. Fe4~n Btos. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Beyond the required desc:ription of the job duties, USCIS reviews the totality of the record when ex<~,mining 
the claimed managerial or executive capacity of a beneficiary, including the. company's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve 
the beneficiary from perfonrting operational duties,. the nature of the business, and any other factors that will 
contribute to a complete understanding of a beneficiary's act®l duties and role in a business. 
In response to the RFE, the petitioner submitted an organizational chart indicating that the beneficiary had 
three .subordinates, including a general manager, a lead sales manager, and a sales manager. Counsel 
contends on ·appeal that these employees are professionals, as ea~h employee holds a bachelor's degree 
required for their respective positions. Further, the petitioner provided adequ.ate du.ty descriptions and 
payroll information relevant to these subordinates. In short, although the petitioner's personnel levels were 
limited, the petitioner established that it employed three full-time employees at the time of filing. However, 
the director concluded that the petitioner did not have sufficient subordinates to relieve him from primarily 
performing day-to-da:y operational tasks. Upon review of the totality ~f the evidenc~. including the evidence 
submitted oil appeal, the AAO concurs with the director's conclusion. 
While the evidence establishes that the petitioner had three employees at the time of filing in June 2012, the 
evidence submitted in resP<>nse to the RFE, specifically an employee history summary report prepared by the 
payroll company for the period ending September 23, 2010, indicates that the sales manager w<~,s no longer 
employed by the petitioner on August 29, 2012. The petitioner's IRS Form 941, Employer's Quarterly 
Federal Tax Return, for the third quarter of 2012 confirms that the petitioner had only two employees as of 
September 2012. Nevertheless~ the petitioner included this employee on its revised organizational chart 
. submitted in response to the RFE iil November 2012, without acknowledging that he is no longer with the 
company. The petitioner initially submitted an organizational chart depicting four occupied positions and 
four open positions, indicating a.n intention to expand the company's operations. These prospective positions 
included a 
sales manager, a marketing department head, a copywriter and a ''PRISEO/SMO Manager." 
However, the petitioner paid significantly less in wages in 2012 as compared to 2011 and had only three 
employees, including the beneficiary, at the end of 2012. 
On appeal, counsel submits evidence that establishes that the general manager left the company in February 
2013, and the petitioner now has only one full-time employee, the former lead sales manager, and. one 
receiltl'y-hired part-tirne software developer. Federal regulations affirmatively require an alien to establish 
eligibility for an immigrant visa at the time an application for adjustment of status is filed or when the visa is 
issued by a United States consulate. 8 C.P.R.§ 245.l(a), 22 C.P.R.§ 42.41. The petitioner bears the ultimate 
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burden of establishing eligibility for the benefit sought. The petitioner's burden is not discharged until the 
immigrant visa is issued. Tongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 136 F.id 1305 (9th Cir. 1984). 
In short, the record indicates ' that the petitioner no longer employs the general manager, an employee
1 
l'rominently emphasized in the beneficiary's duty description as dictating policies and goals to subordinates 
for the beneficiary.. Th~ petitioner did not submit an updated duty description for the beneficiary, despite the 
fact that his duties would reasonably d1a,nge in the ~osence of the general manager. As such, the petitioner 
has not established how the beneficiary will be relieved from performing non-qualifying duties. Given the 
.. ambiguity, lack of personnel, and other evidence presented on the record, such as various c.ontracts to 
provide ~oftware licenses cm,d services to clients, the AAO-finds it more likely than not that the beneficiary is 
and will be primarily engaged in sales and service actiVities, partic\lhlrly giveQ th~t th¢re is only one other 
sales representative in the petitioner's organization. Indeed, the beneficiary is described on the record as an 
"auth.orized representative" to various clients, suggesting he is engaged in the direct. provision of goods and 
services to Clients. An employee who "primarily" pe}jorms the ta,sks necessary to produce a, product or to 
provide services is not considered to be ;'primarily" employed in a managerial or executive capacity. See 
sections 10l(a)(44)(A) and (B) of the Act (requiring that one "primarily'' perform the enumerated managerial 
<it executiVe duties); see also Mqtter ofChutch Scientol08Y Int'l., 19 I&N Dec. 593, 604 (Comm'r 1988). 
Counsel emphasizes on appeal that the director overlooked the fact that the petitioner is the "sales arm" of a 
l~ger multinational organization. The record establishes that the foreign entity has a larger staff and a more 
complex structure relative to the U.S .. corn.pany. However, the petitioner is also des_cribed in the record as the 
''corporate headquarters" for the group and the proposed organizational chart indicates that all sales and 
m~keting personnel are to be U.S.-based. While there is a single marketing position in the foreign 
organization, tbis employee, identified as the "Chief Marketing Officer," does not appear in the foreign 
entity's payroil records. Therefore, the petitioner has _not established Who, other than the benefiCiary and his 
U.S. staff of one to two sales employees, is available to market and sell the petitioner's products and services . 
The beneficiary may in fact continue to oversee the technical and software development operations of the 
foreign entity·, but the record does not establish tl:tat the. foreign entity's personnel coQ.tr.ibute. to the m~;ke.ting 
and sales functions performed by the U.S. office or relieve the beneficiary from perfotiiiiiig such functions. 
PurSl,la.Ilt to section 101(a)(44)(C) of the Act, a company's size alone may not be the determining factor in 
denying a visa to a rh.\lltioational manager or executive. However, it is appropriate for USCIS to consider the 
size of the petitioning company in conj\lnction with other releva,ot factors, sucb as a company's srn11,ll 
personnel §i:Ze, the absence of employees who would perfotil:l the non-managerial or non-executiVe 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. 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), The. size of a company may be especially relev~nt when USCIS notes discrepancies 
in the record and fails to believe that the facts asserted are true. See Systronics, 153 F. Supp. 2d at 15. Given 
the evidence submitted, the AAO does not doubt that the petitioner conducts continuous business in the 
United States. However, this substantial level of operations paired with the la.ck of personnel leaves question 
as to whether the beneficiary could be primarily relieved from performing day-to-day operational tasks, since 
there. are no employees identified as performing administrative tasks such as bill payment, invoicing, service 
'Provision, and other such administrative duties. While the AAO acknowledges c.ou:nsel's claim that the 
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beneficiary Supervises professional subordinate~, the petitio_net has not estabUshed t)Ja.t he performs primarily 
managerial duties or. that· the petitioner's professional staff relieves him ftoirt perfotriling non-qualifying 
duties. 
Lastly, CO\li!S¢1 also ~.ssert~ that USCIS erred in not considering the petitioner's future hiring plans in 
determining Whether beneficiary will act in a managerial ot executive capacity. As noted, the petitioner's 
U.S. organizational; chart. indicated that the petitioner planned on hiring four other employees, including a 
head of the marketing department, a copywriter, another sales manager, and a PR/SEO/SMO manager. 
Howevet, the MO need not, and will not, consider the petitioner's future hiring plan~. At the tiii_le of filing, 
the petitioner had been operating ih the United S.tates since September 2010 and had not yet developed as 
necessary to support the beneficiary in a managerial or executive capacity. The petitioner must establish that 
it has sufficient personnel at the time of the filing ofthe petition to support the beneficiary in a qualifying 
martageri~l or executive c:apacity. Howev~r, the petitioner has not met this burden, particularly in light of the 
evidence submitted on appeal that demonstrates that ·the petitioner; s staffing levels have decreased since the 
petition w~s filed. The petitioner. must establish eligibility at the time of filing the nonimmigrant visa 
petition, A visa 
petition may not be approved basecl ojJ spec11lation of futu.re eligibility or after tbe petitioner 
or beneficiary becomes eligible under a new set of facts. See Matter of Michelin tire Corp., 17 I&N Dec. 
248 (Reg. Comm'r 1978); Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm'r 1971). 
In conclusion, the petitioner has submitted ah overly Vague duty description relevant to the beneficiary's 
proposed duties in the United States and provided evidence indicating that the petitioner does not have 
s\lfflcieJ1t personnel to relieve the pen:eficiary from primarily performing non-qualifying day4o~day 
operational duties. As such, the petitioner has not established that it Will employ the beneficiary in a 
qualifying managerial or executive capacity. Accordingly, the appeal will be dismissed. 
·· Ill. ConclliSion· 
~ 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013}. 
1-let¢, th,at butdert bas not been met 
ORDER: The appeal is dismissed. 
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