dismissed EB-1C Case: Software Development

u~s_. Citizenship_ 
and Immigration 
Services 
MATTER OF Z-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 27, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of mobile location services and solutions, seeks to permanently employ the 
Beneficiary as its software development manager under the first preference immigrant classification 
for multinational executives or managers. · Immigration and Nationality Act (the Act) 
section 203(b)(l)(G), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to 
pennanently 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 
capacity; and (2) that the Beneficiary was employed in a managerial capacity abroad prior to his 
entry to the United States to work for the Petitioner as a nonimmigrant. 1 
On appeal, submits additional evidence and asserts that it has established that the Beneficiary was 
employed abroad, and would be employed in the United States, in a managerial capacity. 
Upon de novo review, we will dismiss the appeal because the Petitioner has not established that the 
Beneficiary was employed abroad in a managerial capacity. As the Petitioner has not satisfied this 
fundamental element of eligibility, we will reserve the remaining issue regarding the Beneficiary's 
proposed U.S. employment in a managerial capacity. 
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 
1 The Director also made a finding that the Petitioner had not made a bona fide offer of permanent employment. The 
Director observed that the Petitioner stated that it was seeking to transfer the Beneficiary to the United States for a 
"temporary period of three years." The record reflects that the Petitioner made this statement in a March 20 I 6 letter 
written in support of an L-1 A non immigrant visa petition filed on the Beneficiary's behalf, a copy of which was provided 
in support of this petition. It appears that the Director misinterpreted this evidence as a current offer of temporary 
employment. However, the Petitioner has clearly stated its intent to employ the Beneficiary on a permanent full-time 
basis and the Director's finding is withdrawn. 
Matter of Z-. Inc. 
capacity, and seeks to enter the Unjted States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer 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. § 204.50)(3). 
II. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The issue to be addressed in this matter 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 initial 
entry to the United States to work for the Petitioner as a nonimmigrant in July 2016. See 8 C.F.R. 
·§ 204.5G)(3)(i)(B). The Petitioner does not claim that he was employed abroad in an executive 
capacity. 
"_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) of the Act, 8 U.S.C. ·§ 110l(a)(44)(A) .. 
Beyond the Petitioner's job description of the Beneficiary's duties abroad, we review 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 nature of the 
foreign entity's business, its staffing levels, and its organizational structure during his period of 
employment abroad. 
A. Duties 
The Petitioner must show that the Beneficiary performed certain high-level responsibilities 
co·nsistent with the statutory definition of managerial 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 was primarily engaged in managerial 9uties, as opposed to ordinary operational 
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Matter of Z-. Inc. 
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. 
The· Petitioner stated that its foreign subsidiary employed the Beneficiary as its software development 
manager from July 2014 until July 2016. It initially submitted a brief description of the Beneficiary's 
duties which included: retaining and supervising a team of two employees; managing and monitoring 
staff in the performance of their duties; determining project approaches and forecasting project 
requirements; developing long-term goals and objectives; building and mentoring a committed team; 
creating and implementing training schedules; and addressing staffing deficiencies. 
The Petitioner also submitted the Beneficiary's offer letter from the· foreign subsidiary which 
indicates that he was hired as "Sr. Member of Technical Staff' in July 2014 and would be 
"responsible for architecting and implementing key components of the Company's technology 
platform." It is unclear whether this is the same position as "Software Development Manager," and 
without an explanation, we cannot determine that the Beneficiary commenced employment in the 
claimed position in 2014 as claimed. 
In a request for evidence (RFE), the Director requested a more detailed description of the 
Beneficiary's actual day-to-day duties and the amount of time he allocated to specific tasks. In 
response, the Petitioner submitted a letter from the foreign entity which included a more specific 
position description; however, the description· was identical to that provided for his current U.S. 
position, and even referred to his supervision of U.S.-based subordinates, who did not report to him 
., during his period of employment abroad. Therefore, the Director found that the Petitioner had not 
submitted a sufficient description of the foreign position. 
On appeal, the Petitioner explained that its submission of identical job duties for both the U.S. and 
foreign positions was "an oversight," noting that the Beneficiary's duties abroad were similar but not 
exactly the same as those he performs in the United States. In a new letter, the foreign entity's 
operations manager states that the Beneficiary's duties abroad were-divided into project management 
tasks (working with the foreign entity's customers c;1nd partners to capture and translate 
requirements) and personnel/staff management tasks (monitoring and managing his direct reports). 
The letter identifies the Beneficiary's areas of responsibility as follows: 
Project Management (20%) 
• Manage multiple technical and implementation programs and project execution 
for large strategic customers in India using prescribed processes . . . . ( 10%) 
• Manage programs and deliver technical and implementation projects. (5%) 
• Responsible for determining project approaches, staffing responsibilities, and 
forecasting project requirements .... (5%) 
Personnel/Staff Management (80%) 
• Retention and supervision of these employees, defining team member roles and 
expectations, ensuring timely feedback, and monitoring their work progress and 
accuracy. (15%) 
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Matter of Z-, Inc. 
• Manage these various staff members, their work product, and their performance in 
implementing their duties. ( 40%) 
• Strictly responsible for the accuracy and effectiveness of_ each member's 
performance. (5%) 
• Build and mentor a c9mmitted team for enhancing efficiency and organizational 
productivity. (5%) 
• Manage and facilitate constant enhancement of team's effectiveness, via screening 
processes including interviews, references, and technical assessments. (5%) 
• Create and implement training schedules; diagnose and address staffing 
deficiencies, as well as prepare and conduct training and development sessions 
and train teams on sourcing, recruitment, negotiation, and completion of resource 
delivery process. ( 10%) 
The foreign entity's letter also includes some examples of specific tasks the Beneficiary completed 
within these areas of responsibility. For example, it indicates that the Beneficiary, as part of his 
project management duties, interfaced with customers in India to capture project requirements, wrote 
detailed requirements documents and developed tasks to be performed by his direct reports; as well 
as documenting customer requirements in the company's internal project management and "Agile 
sprint management" suite. In addition, his duties included regular meetings with contacts at mobile 
network operators; working with other internal development teams, scoping changes required by 
customers, updating project plans, and delivering completed features to customers. 
While the newly submitted description is fairly detailed, it does not establish that the Beneficiary 
performed primarily managerial duties while employed by the Petitioner's foreign subsidiary. First, 
we note that the Beneficiary's project management duties include a number of technical and 
customer-facing tasks that are not clearly managerial in nature. The Petitioner did not establish how 
requirements gathering and documentation duties, and related tasks requiring interfacing with 
customers regarding their technical requirements, rise to the level of managerial dut_ies, rather than 
technical functions necessary to provide the company's services. 
Further, while the foreign entity inclicates that the Beneficiary spent only 20% of his time on these 
"project management" tasks, it also has not adequately suppbrted its claim that the Beneficiary spent 
all of his remaining time supervising a staff of two people. The description of his personnel 
management duties appears to be indicative of an employee who oversees a significantly larger team 
and therefore raises questions regarding how much time the Beneficiary actually spent on such 
duties, and the ability of his team of (at most) two people to relieve him from carrying out the non­
managerial duties.attributed to the team as a whole. 
For instance, the foreign entity's letter states that "the team members were assigned to appropriate 
tasks based on their skill match with the project requirements" and that the Beneficiary worked with 
HR and recruiters "to hire the engineers with the appropriate skills" when no match was available for 
a particular project. At the same time, the Petitioner has consistently identified a total of two 
employees who worked under the Beneficiary's supervision at any time during his two years of 
employment abroad, even after asked to provide a complete list of employees and contractors who 
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Matter of Z-, Inc. 
worked under his supervision. In addition, as discussed further below, one of the Beneficiary's 
claimed subordinates joined the foreign entity less than five months before he was transferred to the 
United States, so the submitted evidence reflects that he had a team of one person for much of the 
year preceding his transfer. 
In addition, although the Petitioner lists six discrete duties under the Beneficiary's responsibility for 
personnel/staff management, there is significant overlap or repetition among the listed duties, which 
raises further questions regarding the amount of time the Beneficiary_ actually allocated to staff 
management. For example, the Petitioner stated that the Beneficiary spent 15% of his time on 
supervising the employees and "monitoring their work progress and accuracy," ·an additional 40% of 
his time managing the team, "their work product and their performance in implementing their-duties," 
and 5% of this time assuring "the accuracy and effectiveness of each member's performance." All 
three of these responsibilities are essentially the same and we cannot discern why they are listed 
separately or how much time the Beneficiary actually spent on supervising and monitoring his 
subordinate( s). 
Finally, as noted, the Petitioner submitted evidence that the Beneficiary was hired as a senior 
member of technical staff specifically for the purpose of "architecting and implementing key 
components" of the group's· technology platform, and not primarily as a project manager or 
personnel manager, as suggested by his job description. 
Overall, while the record indicates that the Beneficiary had some authority over technical aspects of 
projects and supervisory authority over at least one employee, the record as a whole raises questions 
whether he spent his time primarily on higher level managerial functions, rather than being involved 
in the. foreign subsidiary's day-to-day technical project delivery and software development activities. 
Whether the broad duties attributed to the Beneficiary qualify as managerial in nature depends in 
large part on whether the Petitioner established that-he had sufficient subordinate staff to supervise 
and to perform the day-to-day company activities he is claimed to have managed. As discussed 
further below, the Petitioner has not shown that the foreign entity had the ability to relieve the 
Beneficiary from significant involvement in the operational and technical tasks required to provide 
its products and services. · 
The fact that the Beneficiary managed a team or department of a business does not necessarily 
establish eligibility for classification as a multinational· manager. By statute, eligibility for this 
classification requires that the duties of a position be "primarily" managerial in nature. Section 
10l(A)(44)(A) of the Act. Even though the Beneficiary may have exercised some discretion over the 
foreign entity's customer projects and software development activities, the submitted position 
description alone is insufficient to establish that his employment abroad was in a managerial capacity. 
B. Staffing and Organizational Structure 
The Petitioner states that the Beneficiary's managed a two-person software development team which 
was responsible for the following activities: 
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Matter of Z-, Inc. 
• Implement and integrate the carrier connectivity APis for Telecom carriers _in 
India and rest of Asia. 
• Design and development of software features for the location and identity services 
platforms. 
• Development of Back End Database integration and Security Modules. 
• Development of Carrier Connectivity with India and Asia/Pacific carriers. 
• Development of customer facing UI modules. 
• Development of Unit Tests and fixing defects found during software testing and 
issues reported by customer. 
• . Review business requirements and provide development , integration and test 
estimates. 
• Develop proof of concept implementation and prototypes before arriving at final 
design divisions. 
• Document the design of the software and test modules required for implementing 
the business requirements . 
. • Implement the software using the design approach , perform code review of peer 
code, develop unit test and fix software defects identified during the test cycle. 
A foreign entity organizational chart dated "3/10/2016" depicted the Beneficiary as software 
development manager supervising a "UI Developer" and a "Backend Developer," and no other 
technical staff within the Indian subsidiary. The Petitioner provided brief descriptions of the 
subordinates' job duties in response to the Director's RFE. 
The Petitioner has provided some · additional details regarding those subordinate employees on 
appeal, noting that both individuals were responsible to "develop documents to capture the high and 
low-level software design" for review , provide development estimates , implement location and 
identity services through carrier integration, develop server-side software, develop Java code, 
develop unit tests, and work with customer/carrier teams to ensure the project is delivered. 
The Petitioner submitted evide~ce that one of the Beneficiary's subordinates joined the 
foreign entity at the end of February 2016 , less than five months prior to the Beneficiary's transfer to 
the United States, while the other was hired at the same time as the Beneficiary .2 The 
Petitioner has not mentioned any other employees supervised by the Beneficiary during his two 
years of employment abroad; therefore , the record reflects that the Beneficiary's "team" consisted 
solely of for a period of more than 18 months. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A) of the Act. Personnel managers are required to 
primarily supervise and control the work of other supervisory, professional, or 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 
2 The record also reflects that was no longer on the foreign company's payroll after !September 2017 
although the Petitioner claims that the foreign entity continues to employ him as of the date of the appeal. 
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Matter of Z-, Inc. 
of the supervisor's supervisory duties unless the employees supervised are professional." 3 Section 
101(a)(44)(A) of the Act. If a beneficiary directly supervises other employees, the beneficiary must 
also have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. 8 C.F .R. § 214.2(1)( 1 )(ii)(B)(3). 
Here, the Petitioner stated that the Beneficiary spent 80 percent of his time on staff management and 
did not articulate a claim that the Beneficiary primarily managed an essential function. For the 
reasons discussed above, however, the Petitioner has not adequately supported its claim that the 
personnel monitoring and supervision duties attributed to the Beneficiary were his primary duties. 
The Petitioner established that he·had only one subordinate team member for a significant portion of 
his period of employment abroad, and at most, two subordinates during any portion of his tenure 
with the foreign entity. While we do not doubt that these subordinates were professionals and that 
he spent some time on qualifying supervisory duties, the totality of the evidence does not support the 
Petitioner's claim that he was employed primarily as a personnel manager. 
In considering the foreign entity's staffing levels, we must take into account the reasonable needs of 
the organization and we acknowledge that the company's size alone may not be the only factor in 
determining whether the Beneficiary was employed abroad in a managerial capacity. See section 
10l(a)(44)(C) of the Act. However, it is appropriate to consider the size of the company in 
conjunction with other relevant factors, such as the absence of employees available to perform the 
non-managerial functions 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 ). 
The Petitioner indicates that the Beneficiary supervised a team of two workers who were charged 
with implementing and integrating "carrier connectivity APis for Telecom carriers in India and rest 
of Asia" including all associated requirements gathering, software design and development, 
documentation and testing. The Petitioner indicates that the Beneficiary himself performed the 
customer-facing activities and requirements gathering, and has not supported its claim that the 
Beneficiary had a two-person team for a full year. Absent additional explanation, it is unclear how 
one subordinate employee relieved the Beneficiary from significant involvement in the extensive 
technical activities assigned to the team as a whole, or how the foreign entity had a reasonable need 
for the Beneficiary to allocate 80% of his time to supervising one, or even two, subordinates. 
For the reasons discussed above, the Petitioner has not established t1'at the Beneficiary was 
sufficiently relieved from significant involvement in the day-to-day non-managerial activities of his 
department, despite his job title as "software development manager" or "senior member of technical 
staff." Accordingly, the Petitioner has not met its burden to show that he was employed abroad in a 
3 In evaluating· whether a beneficiary manages professional employees, we must evaluate whether the subordinate 
position·s 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 occup
0
ation"): Section IO I (a)(32) of the ·Act, states that "[t]he term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in eleme~tary or 
secondary schools, colleges, academies, or seminaries." 
Matter of Z-, Inc. 
·-
managerial capacity for at least one year .in the three years preceding his transfer to the United 
States. , 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the tmmigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of Z-, Inc., ID# 2338508 (AAO Feb. 27, 2019)