dismissed EB-1C Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-S-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 11, 2015 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a company engaged in software development and sales, seeks to classifY the 
Beneficiary, its chief executive officer, as a multinational manager or executive. See Immigrant and 
Nationality Act (the Act) § 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). The Director, Texas Service 
Center, denied the petition. The matter is now before us on appeal. The appeal will be dismissed. 
The Director determined that the record did not establish that the Beneficiary will be employed in a 
qualifying managerial or executive capacity. 
On appeal, the Petitioner asserts that the company's small size is not a disqualifying factor, and that 
the Beneficiary has contributed to the beneficiary's growth in his role as its CEO. The Petitioner 
submits a legal brief and supporting exhibits. 
I. THE LAW 
Section 203(b) of the Act states 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 United States under this subparagraph, has been 
employed for at least 1 year by a firm or corporation or other legal entity or an affiliate 
or subsidiary thereof and the alien seeks to enter the United States in order to continue to 
render 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 only to those executives and managers 
who have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of 
Matter of C-S-, Inc. 
that entity, and who are coming to the United States to work for the same entity, or its affiliate or 
subsidiary. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. The 
regulation at 8 C.P.R. § 204.5G)(5) states: 
No labor certification is required for this classification; however, the prospective 
employer in the United States must furnish a job offer in the form of a statement 
which indicates that the alien is to be employed in the United States in a managerial 
or executive capacity. Such letter must clearly describe the duties to be performed by 
the alien. 
Section 101(a)(44) ofthe Act, 8 U.S.C. § 1101(a)(44), provides: 
(A) The 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 supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) 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 supervised are 
professional. 
(B) The term "executive capacity" means an assignment within an organization in which 
the employee primarily-
(i) directs the management of the organization or a maJor component or 
function of the organization; 
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(b)(6)
Matter of C-S-, Inc. 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(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 of the organization . 
(C) If staffing levels are used as a factor in determining whether an individual is acting 
in a managerial or executive capacity, the Attorney General shall take into account 
the reasonable needs of the organization, component, or function in light of the 
overall purpose and stage of development of the organization , component, or 
function. An individual shall not be considered to be acting in a managerial or 
executive capacity (as previously defined) merely on the basis of the number of 
employees that the individual supervises or has supervised or directs or has 
directed. 
II. ISSUE ON APPEAL 
The sole issue on appeal is whether the Petitioner established that the Beneficiary will be employed in a 
qualifying 
managerial or executive capacity. 
A. Facts 
The Petitioner filed the Form 1-140 on October 23, 2013. The petition included an October 16,2013 
letter signed by Chief Technology Officer of the Petitioner's parent company in 
Israel. The Petitioner provided a chart of the Beneficiary's duties and the hours devoted to each 
task: 
Job Duties Weekly Hours 
Oversee company's day-to-day operations and manage company's 12-14 
employees. 
Meet with strategic technology partners and coordinate the 10-12 
marketing efforts (manage relations with key customers ... ; 
approve price proposals for company ' s services and products). 
Exclusive responsibility over financial affairs of the Petitioner 7-10 
(signatory rights and bank account management, payment to 
suppliers, employees and other expenses , as well as working with 
the company's auditors on financial reports and statements). 
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(b)(6)
Matter of C-S-, Inc. 
Responsibility over all HR [human resources] affairs of the 5-6 
Petitioner (hiring, dismissal, and engagement negotiations with 
potential employees, contractors, and outsourced service 
providers). 
Drafting and presenting for approval of the Board of Directors of 3-4 
annual budget for Petitioner's activity. Managing the approved 
budget, with full signatory rights to execute all tasks derived 
thereof. 
Representing [the Petitioner] in conventions and business events. 3-4 
Responsibility over regulations and legal activities in front of the 1-2 
U.S. authorities. 
On the Form I-140, the Petitioner stated its "Current Number of U.S. Employees" as "6 (including 
contractors)." The Petitioner asserted: "A significant number of additional employees will be added 
to the U.S. payroll, as soon as agreements with and other companies are 
finalized." The Petitioner submitted the following chart, labeled "current employees" although it 
also includes unstaffed and anticipated future positions: 
Position Job description Weekly Reporting 
to 
working 
hours 
CEO Managing the company 40-50 Board of 
Directors 
COO [Chief Responsible for the relationship 45-50 CEO 
Operating Officer] with existing business partners in 
North and South America 
Senior Alliance Responsible for strategic 25-30 coo 
manager [vacant at engagement with key 
time of filing.] organizations and partners. 
Business Responsible for the business 5-10 CEO 
development - relationship with companies in the 
Healthcare and Healthcare and medical device 
Medicaid market. 
Finance & Funding Helps [company] to engage with 5-10 CEO 
strategic partners and venture 
capital firms. 
Inside Sales Coordinates the sales activities, 20-30 coo 
representative telemarketing, etc. 
(vacant] 
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Matter of C-S-, Inc. 
Support Specialists Customer support and pre-sale 35-40 CEO 
["Number of 
employees depends 
on the growth of 
the company."] 
An accompanying organizational chart included the following information: 
I CEO I 
I 
Financial & Funding Book-keeping (Contract) 
Advisor (Contract) 
Inside Sales Healthcare & Business partners 
(Currently in Medical market -USA&APAC 
replacement) Business 
Development 
(Contract) 
Technical Engineer 
(Hiring Process) 
Alliance Manager 
(Currently in 
replacement) 
The organization chart shows positions not shown on the employee list. Furthermore, it is not 
evident in what sense the Petitioner's business partners report to the Petitioner's COO as the 
organizational chart implies. 
A second organizational chart, showing the company's projected structure "[a]fter [e]xpected 
investment" in the first two quarters of 2014, added a Chief Financial Officer and a Technical 
Officer directly below the CEO. Two support engineers would report to the Technical Officer. The 
number of workers reporting to the COO would expand to five: the Inside Sales Manager 
(overseeing an Inside Sales Representative); a Marketing Manager; a Healthcare & Medical Market 
BD Manager; a Sales Director (overseeing three regional Alliance Managers); and a fourth Alliance 
Manager, outside the chain of command for the regional Alliance Managers. 
The Petitioner submitted copies of six IRS Form W-2 Wage and Tax Statements for 2012, showing 
wages and salaries paid to six employees that year. Other materials in the record provide titles for 
four of these individuals and refer to a fifth as an "Owner/Corporate Officer." The salaries paid were 
as follows: 
The Beneficiary 
Unspecified owner/officer 
coo 
Alliance Manager 
Inside Sales Rep. 
Unspecified 
$176,900.00 
39,241.42 
27,884.00 
34,999.00 
2,898.00 
850.00 
Matter ofC-S-, Inc. 
The Petitioner submitted copies of offer letters and contracts, describing three of the positiOns 
identified on its organizational chart. A "Consultancy Services offer" listed the following duties for 
the Healthcare & Medical Market Business Developer: 
• Introduce prospective enterprise companies and business partners from the healthcare 
and medical devices industry. 
• [C]onduct initial meetings with prospects to introducing Company and Company's 
offering for a possible business opportunity .... 
• [F]ocus on the following areas: 
• Build/increase US Market Awareness on Company products and services 
• Develop direct contacts with decision-makers at Upper-tier Accounts, business 
partners and resellers 
• Assist in building a relationship with Local Company Alliances 
A letter to the Petitioner's contracted Financial & Funding Advisor indicated that the position would 
involve "Business development strategy planning," "Corporate Operation strategy" and "Capital and 
financing." A job offer letter for the part-time position of "inside sales admin assistant" stated that 
the position's "responsibilities will include, but shall not be limited to, inside sales activities, 
telemarketing, CRM updates and presentations in front of customers over GoToMeeting." 
The Director issued a request for evidence (RFE) on July 10, 2014. The Director stated that the 
Petitioner had not submitted adequate information about the Beneficiary's duties and those of his 
subordinates. The Director noted that the Beneficiary and the COO were the only full-time 
employees. 
In response, the Petitioner submitted a second chart describing the Beneficiary's job duties. The 
duties described were nearly identical to those on the earlier chart, but the Petitioner changed the 
balance of the hours devoted to some tasks: 
Job Duties 
Financial affairs 
Drafting budgets 
Conventions and events 
Regulations and legal activities 
Hours, chart 1 
7-10 
3-4 
3-4 
1-2 
Hours, chart 2 
5-8 
5-7 
6-8 
4-5 
A revised list of "current/prospective employees" did not show the expansion that the Petitioner had 
forecast for the first half of 2014. The list is largely similar to the previous list of current employees 
and contractors, except that a part-time Marketing Associate position had replaced the Senior 
Alliance Manager position, and the Petitioner projected the future hiring of full-time Sales Account 
(.. 
Matter of C-S-, Inc. 
Managers and up to five Software Engineers, with the exact number of both positions dependent on 
the company's future growth. A July 30, 2014 job offer letter for the Marketing Associate listed the 
position's responsibilities as "inside sales and marketing activities, telemarketing, CRM updates, 
SEQ and any future required marketing activities." 
An organizational chart, dated August 2014, showed the Beneficiary on the top level, with five 
subordinates on the second level: the COO; a Support Engineer; a Software Engineer; and two 
contractors: the Financial & Funding Advisor and a Bookkeeper. The COO's listed subordinates 
were unchanged from the earliest organizational chart, except for the addition of the part-time 
Marketing Associate. The new chart indicated that the Alliance Manager position, absent from the 
"current/prospective employees" list, still existed but was vacant. 
Also in the RFE, the Director instructed the Petitioner to "submit copies of Forms W-2 and/or 1099 
for each of the employees and contractors paid in 2012 and 2013 as well as state employment tax 
reports showing the amount of wages paid in 2012 and 2013." The Petitioner's response did not 
include any IRS Forms 1099. Also, the Petitioner did not document the extent, if any, to which it 
hired the services of contractors during early 2014, projected earlier as a period of expansion. 
The Petitioner submitted five Forms W-2 for 2013, as well as tax and payroll documentation for the 
first quarter of2014, showing the following amounts: 
The Beneficiary 
coo 
Alliance Manager 
Inside Sales Rep. 1 
Inside Sales Rep. 2 
2013 
$163,400 
41,548 
11,999 
550 
3,600 
Q1 2014 
$42,600 
13,122 
2,880 
The salaries reported on the Forms W-2 total $221,097 in 2013, compared to $282,772.42 in 2012. 
In the denial notice, the Director observed that the Petitioner has only two full-time employees and 
stated: "As there are few employees to carry out the daily essential functions of the business, it must 
be demonstrated that the beneficiary is not performing them, but is in fact serving in a managerial or 
executive role." The Director concluded that the Petitioner had not established that the Beneficiary 
is employed or will be employed, in a qualifying executive or managerial capacity. 
On appeal, the Petitioner submits a brief, asserting that it has provided sufficient information and 
evidence to warrant approval of the petition, and that it has identified "professional employees 
within the company, who are subordinate to the Beneficiary and who would relieve the Beneficiary 
from performing routine duties inherent to operating the business." 
(b)(6)
Matter of C-S-, Inc. 
B. Analysis 
For the reasons to be discussed below, we find that the Petitioner has not established that the 
Beneficiary will be employed in a qualifying managerial or executive capacity. 
The definitions of executive and managerial capacity each have two parts. First, the petitioner must 
show that the beneficiary performs the high level responsibilities that are specified in the definitions. 
Second , the petitioner must prove that the beneficiary primaril y 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). 
The Petitioner devotes a considerable portion of the appeal to the assertion that the company has 
grown as a result of the Beneficiary's leadership. Evidence of growth would not, by itself, 
demonstrate that the Beneficiary qualifies as a multinational manager or executive. Further , the 
record does not support the Petitioner's claim . The Petitioner assetis that the response to the RFE 
included "evidence of significant growth of the company. " The record does not suppmi this 
assertion. The RFE response did not show that the company had taken on a greater number of 
employees, and the Petitioner ' s payroll shrank by more than $60,000 from 2012 to 2013. A payroll 
journal for late October 2014 identifies the Beneficiary and only three other paid employees , two of 
whom are part-time . A new organizational chart submitted on appeal shows a fifth part-time 
employee (hired November 2014), three vacant positions, and four contractors . The Beneficiary and 
the COO remain the Petitioner's only full-time employees. 
Furthermore , at the time of filing the petition, the Petitioner stated : "The company has been growing 
very fast. ... The revenue is expected to hit $1 ,000,000.00 by the end of 2013." The Petitioner ' s 
RFE response showed that the Petitioner did not reach this goal. The Petitioner ' s IRS Form 1120 
U.S. Corporation Income Tax Return for 2013 , submitted in response to the RFE, shows gross 
receipts of $345,269 for the year, with a net loss of $349,210 after expenses. Therefore, the record 
does not support the Petitioner's claims of fast, significant, or sustained growth . 
The Petitioner correctly observes that a company ' s size alone, without taking into account the 
reasonable needs of the organization , may not be the determining factor in denying a petition for 
classification as a multinational manager or executive. See § 101(a)(44)(C) of the Act, 8 U.S .C. 
§ 1101(a)(44)(C). However , it is appropriat e for USCIS to consider the size of the petitioning 
company in conjunction with other relevant factors, such as the absenc e of employees who would 
perform the non-managerial or non-executive operations of the compan y, 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 Petitioner submits new organizational charts for the petitioning U.S. entity and the parent 
company in Israel. These new charts both indicate that the Beneficiar y is the CEO not only for the 
Petitioner , but for the foreign entity as well. The Petitioner's previous organizational charts and 
descriptions of duties did not indicate that he remained responsible for the foreign entity. The 
Petitioner ' s initial filing did not refer to the Petitioner as the company ' s headquarters, and 
0 
(b)(6)
Matter of C-S-, Inc. 
October 16, 2013 introductory letter used the past tense when referring to the Beneficiary's 
time as the CEO of the company in Israel. 
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 USCIS requirements. See Matter of Izummi, 22 I&N Dec. 
169, 175 (Comm 'r 1998); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971), which 
require that beneficiaries seeking employment-based immigrant classification must possess the 
necessary qualifications as of the filing date of the visa petition. 
The Petitioner states that the Director made a general finding of ineligibility but did not "identify[] 
those job duties that would render Beneficiary 
ineligible." Elsewhere in the same brief, however, the 
Petitioner cites such examples, stating that the Director "mistakenly concluded that the Beneficiary 
'will be working with customers' and 'will be working at sales conventions."' The Petitioner did not 
explain how these conclusions were mistaken, given that the Petitioner 's list of the Beneficiary's 
duties included "manag[ing] relations with key customers" and "[r]epresenting [the Petitioner] in 
conventions and business events." The appeal itself contains a new job description stating that the 
Beneficiary "sometimes represents [the Petitioner] in national and international conventions and 
business events." 
The Petitioner asserts that any non-qualifying functions the Beneficiary performs are incidental, and 
that the Beneficiary primarily performs qualifying managerial duties. The Petitioner, however, has 
not described those primary duties in any detail. The original description of his chief function reads, 
simply: "Oversee company's day-to-day operations and manage company's employees." 
Reciting a 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. Here, 
the Petitioner has not provided sufficient 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. 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). Specifics are clearly an important indication of whether a beneficiary's 
duties are primarily executive or managerial in nature, otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
A new job description, submitted on appeal, indicates that the Beneficiary "dedicates 100% of his 
time to fulfill his executive role," through "Meetings with the Board of Directors and Stockholders," 
"Supervision of strategic business relationships ," and such activities. The updated job description 
relies on the Petitioner's current structure and projected future hiring, rather than the structure that 
was in place when the when the petition was filed. The petitioner must establish eligibility at the 
time of filing; a petition cannot be approved at a future date after the petitioner or beneficiary 
becomes eligible under a new set offacts. Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm'r 1971). 
When the Petitioner filed the appeal, there was no indication that it intended to supplement the 
appeal at a later date. Two months later, the Petitioner submitted documentation that had 
accompanied a separate nonimmigrant petition, seeking to classify the Beneficiary as an L-1 A 
nonimmigrant manager or executive. The Petitioner filed the nonimmigrant petition on November 
9 
Matter ofC-S-, Inc. 
28, 2014, after the denial of the present immigrant petition and more than 13 months after the 
present petition was filed. USCIS approved the nonimmigrant petition on December 29, 2014. The 
Petitioner asserts that this evidence shows that USCIS has accepted that the Beneficiary qualifies as 
a multinational manager or executive. 
The 2014 nonimmigrant petition is not before us on appellate review, and we will therefore reach no 
conclusions on its merits. We note, however, that the job description submitted with that petition is 
demonstrably different from the description submitted with the immigrant petition under review. 
Some duties are entirely different, and where there is overlap, the hours devoted to the tasks are 
markedly different. Therefore, the two petitions rested on two different fact patterns, and the 
approval of one does not demonstrate or imply error in the denial of the other. In making a 
determination of statutory eligibility, users is limited to the information contained in the individual 
record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). 
Overall, while we do not doubt that the Beneficiary exercises the appropriate level of authority over 
the petitioning company as its CEO, the evidence of record does not establish that he, as one of only 
two full-time employees, performed primarily qualifying duties at the time of filing, or that he had 
sufficient subordinate staff to relieve him from involvement in the day-to-day operations of the 
company. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary will be employed in 
a qualifying managerial or executive capacity. 
III. CONCLUSION 
We will dismiss the appeal 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; Matter o[Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not 
met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-S-, Inc., ID# (AAO Sept. 11, 2015) 
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