dismissed EB-1C Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 4241550 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 8, 2020 
Form 1-140, Immigrant Petition for Multinational Managers or Executives 
The Petitioner , a developer of software products , seeks to permanently employ the Beneficiary as its 
director of product engineering under the first preference immigrant classification for multinational 
executives or managers . Immigration and Nationality Act (the Act) section 203(b)(l)(C) , 8 U.S .C. 
§ 1153(b )(1 )(C). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish , as required, that it will employ the Beneficiary in the United States in a managerial or 
executive capacity. 
In these proceedings, it is the Petitioner 's burden to establish eligibility for the requested benefit. 
Section 291 of the Act , 8 U.S .C. § 1361. Upon de nova review , we will dismiss the appeal. 
I. LAW 
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. 
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(i)(3). 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establi sh that it seeks to employ the Beneficiary in an 
executive capacity . The Petitioner does not claim that it intends to employ the Beneficiary in a 
managerial capacity. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
Based on the statutory definition of executive capacity, the Petitioner must show that the Beneficiary 
will perform certain high-level responsibilities. See section 101(a)(44)(B) of the Act The Petitioner 
must also prove that the Beneficiary will be primarily engaged in executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006). 
When examining the claimed executive capacity of a given beneficiary, we will look to the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the Beneficiary and indicate whether such duties are in a managerial or 
executive capacity. See 8 C.F.R. § 204.5(i)(5). Beyond the required description of the job duties, we 
examine 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, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within 
a complex organizational hierarchy, including major components or functions of the organization, and 
that person's authority to direct the organization. Under the statute, a beneficiary must have the ability 
to "direct the management" and "establish the goals and policies" of that organization. Inherent to the 
definition, the organization must have a subordinate level of managerial employees for a beneficiary 
to direct and a beneficiary must primarily focus on the broad goals and policies of the organization 
rather than the day-to-day operations of the enterprise. An individual is not an executive under the 
statute simply because they have an executive title or because they "direct" the enterprise as an owner 
or sole managerial employee. A beneficiary must also exercise "wide latitude in discretionary decision 
making" and receive only "general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization." Section 101(a)(44)(B) of the Act. 
A. Directing the Management 
At the time of filing, the Petitioner claimed five U.S. employees. The Petitioner stated that its 
subsidiary in India "maintains a team of highly-experienced software engineers and managers" which 
"supports [the Petitioner] in the U.S., India and around the world." The Petitioner stated that the 
Beneficiary "acts in an executive capacity in that he directs and oversees a critical function within the 
company- engaging in new business initiatives, client development and interfacing with clients." The 
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Petitioner asserted that the Beneficiary "is the primary interface" between the U.S. and foreign 
companies, "coordinating the teamwork on product development and project implementation." 
The Petitioner has submitted two lengthy but conflicting job descriptions for the Beneficiary. The 
first version contains a combination of what appear to be executive, managerial, and operational tasks. 
Examples of non-executive tasks include: 
• Identifying the capabilities and features that are to be custom built on top of current 
... platform for fulfilling the client's requirements; 
• Maintaining and building a knowledge base of each client's businesses, 
organizations, and objectives; and 
• Supervising and controlling the work of other professional and managerial 
employees. 
Other responsibilities are too vaguely worded to identify any specific activity. For example: 
• Expanding new business opportunities from the current accounts by showcasing 
the company's product's end-to-end capabilities and solutions; 
• Managing day-to-day client interaction and communication to identify needs and 
evaluate alternate solutions; and 
• Building [the Petitioner's] business solutions vertically and directing/managing all 
business-critical solutions, new business developments and client acquisitions. 
Many of the newly claimed elements in the second version of the job description (submitted in 
response to a request for evidence) are generic in nature, such as: "Champion engineering and 
operational excellence, establishing metrics and process for regular assessment and improvement." 
The revised description also referred to "interactions with the internal sales ... teams," although the 
Petitioner's organizational chart showed no sales team, either in the United States or abroad. 
The descriptions of the Beneficiary's duties do not self-evidently demonstrate that the Beneficiary has 
filled, or will fill, an executive capacity at the petitioning U.S. company. In the denial notice, the 
Director focused on the company's staffing, discussed below. 
To establish that the Beneficiary will be directing the management of a major function of the 
petitioning entity, the Petitioner must first show that the function has management for the Beneficiary 
to direct. An organizational chart, which combined the U.S. and foreign operations, listed the 
following positions subordinate to the Beneficiary (all in India except for one senior engineer): 
• 2 Senior Engineers ( one in United States, one in India), with no subordinates 
• Product Lead, with four subordinate developers 
• Senior Engineer, with two subordinate developers 
• Tech Lead, with three subordinate developers 
• UX Lead, with no subordinates 
• Product Lead, with no subordinates 
• Senior DB Engineer, with no subordinates 
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In response to a request for evidence, the Petitioner provided a different list of the Beneficiary's 
subordinates: 
• Director, with six subordinates: 
o Four Senior Application Developers 
o Principal DBA 
o Product Lead 
• Director, with three subordinates: 
o Product Lead 
o Engineering Manager 
o Unspecified title (name only) 
• Principal Engineer 
• Senior Product Lead 
• Two Product Leads 
Eleven names appear on both lists, but none of them had the same job title from one list to the next. 
For instance, the individual called an "Engineering Manager" on the new list previously held the title 
"Tech Lead." The two individuals newly named as "Directors" did not appear on the first 
organizational chart at all. The Petitioner must meet eligibility requirements at the time of filing. See 
8 C.F.R. § 103.2(b)(l). Therefore, we need not consider the new organizational structure until and 
unless the Petitioner establishes that the structure at the time of filing warranted an executive position 
at the Beneficiary's level. Any post-filing reorganization of the company cannot retroactively 
establish eligibility prior to that reorganization. 
The Director concluded that the petitioning "organization is not sufficiently complex and mature 
enough to [require the services of an] executive .... [T]he beneficiary does not appear to assign or 
delegate work to managers, but appears to perform many duties themselves." The Director added that 
"the beneficiary is in effect a supervisor of non-managers and/or non-professionals." 
On appeal, the Petitioner asserts: "The company is not a 7-person company, but a rapidly growing 
company with 30 employees in India and 7 in the US . . . . [The Beneficiary] provides direct executive 
leadership for 6 high-level managers, and indirect executive leadership to the remaining 25 employees 
in the product engineering division." The Director, however, did not refer to the Petitioner as "a 7-
person company," or specify that consideration was limited to U.S. employees. 
The Petitioner asserts that the Beneficiary supervised managers who, in turn, supervised professionals 
holding bachelor's degrees. The information about the intermediate positions is incomplete and 
inconsistent; as noted above, the Petitioner has provided two very different descriptions of the 
personnel structure under the Beneficiary's authority. The presence of professionals in lower levels 
of the organization does not compel the finding that the Beneficiary qualifies as an executive. 
The Petitioner has not shown that the staffing of the organization is sufficient to relieve the Beneficiary 
from primarily performing non-executive tasks, or to warrant an executive position at the 
Beneficiary's level. 
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B. Establishing Goals and Policies 
Initially, the Petitioner stated: 
[The Beneficiary] maintains the ability to define, set and alter-as-needed goals and 
policies within his division (Sales & Products), including new product development, 
targeted sales growth, client expectations and timelines and ensuring client's goals are 
clearly defined and articulated to ensure customer satisfaction. As such, he develops 
program and plans, including determining sales objectives, project benchmarks, budget 
and resource allocation, and oversees client relationships. 
The initial record provided no specific support for the above claims. After the Director requested more 
evidence, the Petitioner narrowed its assertions regarding the Beneficiary's policy-making authority: 
Many of our clients require our company to have a SOC 2 audit and certification. SOC 
2 (System and Organization Controls) examinations can elevate an organization by 
providing customers with assurance regarding the controls in place that protect the 
systems or data you have access to. As a result of this industry standard we have eleven 
separate policies that we have in place. 
After listing elements such as "Network Security Policy" and "Viruses and Mal ware Protection 
Policy," the Petitioner stated that its SOC 2 certification requires semiannual reviews, for which the 
Beneficiary is responsible. This information does not establish that the Beneficiary has discretion to 
establish company policies. Rather, it indicates that the Beneficiary is responsible for ensuring that 
the company is in conformity with requirements imposed by a third party, in much the same way that 
the company must act within the parameters of tax laws, local fire codes, and the terms imposed by 
service providers. 
The Petitioner also stated that the Beneficiary "is the executive team member who is responsible ... 
to set and define all policies related to utilization of our products ... [and] use of open source 
technologies." More specifically, the Petitioner stated that the Beneficiary set the "policy [that] 
ensures that product support is restricted to genuine product support and does not apply to product 
enhancements or product modifications," and "decides the policy for utilization of [ open source] 
technologies with a view to minimizing [the Petitioner's] exposure upon discontinuation" of those 
technologies. The record does not contain the policy instruments themselves (to establish that these 
principles amount to actual policies) or establish that the Beneficiary set the policies with little or no 
oversight from higher-level executives. 
C. Wide Latitude in Discretionary Decision-Making 
The Petitioner stated that the Beneficiary "has executive capacity to sign and bind the company to 
contractual agreements." The Petitioner indicated that the Beneficiary's duties included "[a]pproving 
and signing new Statement[s] of Work (SOW) and Master Service Agreements (MSA)." The 
Petitioner did not submit any MSAs, but the Beneficiary's signature is on two SOWs, both from a 
wholesale grocer. The SOW forms, prepared by the grocer, required executive signatures from the 
grocer, but the forms showed no such restriction for the vendor (in this case, the Petitioner). 
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The record also includes a license agreement with a major social media client and a master purchase 
agreement with another, both executed while the Beneficiary was working for the Petitioner in the 
United States. The Beneficiary did not sign either agreement; the signatures were those of the 
Petitioner's chief executive officer (CEO) and chief technology officer (CTO). An article in The 
Silicon Review described the CEO and CTO as "the Master Duo" behind the petitioning company. 
The evidence, therefore, indicates that higher-level officials enter into the overall agreements while 
leaving the Beneficiary to negotiate the details of services that the Petitioner will provide to its clients. 
As evidence of the Beneficiary's authority over the Petitioner's Products Engineering Division, the 
Petitioner submitted printouts of email conversations and other materials. Examples of these 
communications included instructions to subordinates; an invitation to a meeting of "Senior 
Management"; and approval of a maternity leave request from a developer (the lowest-level employee 
on the Petitioner's organizational chart). Such materials show a degree of authority, but not at an 
executive level. Authorization ofleave, for instance, is statutorily a managerial responsibility, not an 
executive one. See section 10l(a)(44)(A)(iii) of the Act. By statute, the definitions of "managerial 
capacity" and "executive capacity" are separate and distinct. The Petitioner has specifically claimed 
that the Beneficiary will serve in an executive capacity, and the Petitioner cannot meet its burden of 
proof with evidence that touches on individual aspects of managerial capacity. 
D. General Supervision or Direction 
To show that the Beneficiary receives only general supervision from higher level authorities, the 
Petitioner noted that the Beneficiary quoted prices, assigned training requests, and provided "a short, 
annual recap" of company achievements to the division, "without any supervising approval by the 
executive team." The Petitioner did not establish that tasks such as price estimates and training 
assignments are restricted to executive-level officials. 
As shown above, the Petitioner claims that the Beneficiary meets each of the four elements of an 
executive capacity, but the record does not sufficiently support the Petitioner's claims in this regard. 
Based on these deficiencies, the Petitioner has not established that the Beneficiary will be employed 
in a managerial or executive capacity in the United States. 
III. QUALIFYING RELATIONSHIP 
Beyond the issues raised by the Director, we find that the record does not establish that the Petitioner 
has a qualifying relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, a petitioner must show that 
the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. 
entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally 
section 203(b)(l)(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
The Petitioner identified the Beneficiary's last foreign employer as a subsidiary of the petitioning U.S. 
company. The Petitioner did not provide farther details or submit any evidence of the ownership or 
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control of either company; therefore, the Petitioner has not established that there is a qualifying 
relationship. 
The Petitioner's 2015 income tax return indicated that the company's CTO is the sole shareholder, 
and referred to the foreign entity as a "controlled foreign corporation," but the tax return itself is not 
direct evidence of ownership or control of the two companies. The lack of such evidence is an 
additional disqualifying factor in this proceeding. 
IV. CONCLUSION 
For the reasons discussed above, the Petitioner has not established that it will employ the Beneficiary 
in an executive capacity in the United States. The appeal will be dismissed for the above stated 
reasons. 
ORDER: The appeal is dismissed. 
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