dismissed EB-1C Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-USA, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 14, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software development and consulting company, seeks to permanently employ the 
Beneficiary as an IT Program Manager 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)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary was employed abroad in a managerial or executive capacity, 
or that the Beneficiary will be employed in a managerial or executive capacity in the United States. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary has been 
employed abroad in a managerial capacity, and that the Beneficiary will be employed in a managerial 
capacity in the United States. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the petition, 
has been employed outside the United States for at least one year in a managerial or executive capacity, 
and seeks to enter the United States in order to continue to render managerial or executive services to the 
same employer or to its subsidiary or affiliate. Section 203(b )(1 )(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 corning to work in the United States for the same employer 
or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has been doing 
business for at least one year. See 8 C.F.R. § 204.5(j)(3). 
Matter ofN-USA, Inc. 
II. DEFINITIONS 
"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. 
Based on the statutory definitions of managerial and executive capacity, the Petitioner must first show 
that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 
940 F .2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that 
the Beneficiary will be primarily engaged in managerial or 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); Champion World, 940 F.2d 1533. 
III. EMPLOYMENT ABROAD IN A MANAGERIAL CAP A CITY 
In a letter submitted with the petition, the Petitioner asserted that its foreign affiliate employed the 
Beneficiary as its associate (from September 17, 2007, to September 30, 2008), senior associate (from 
October 1, 2008, to March 31, 2009), and senior software engineer ( from April 1, 2009, to March 1, 
2011). In its response to the Director's request for evidence (RFE), the Petitioner stated that the 
Beneficiary "performed his job duties as project lead." The Director found that the Petitioner had not 
established that this foreign employment was in a primarily managerial capacity. 1 
When examining the claimed managerial or executive capacity of a given beneficiary, we will look to 
the petitioner's description of the job duties. 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 foreign employer's business and its staffing levels. 
A. Duties 
The Petitioner initially described the Beneficiary's duties abroad as follows: 
1 The Petitioner does not claim that the Beneficiary has been employed in an executive capacity. Therefore. we restrict 
our analysis to whether the Beneficiary has been employed in a managerial capacity. 
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Matter ofN-USA, Inc. 
During his employment atc=]India, [the Beneficiary] researched, designed, wrote 
and tested new software programs; developed existing systems by analyzing and 
identifying areas for modification; maintained systems by monitoring, identifying and 
correcting software defects; wrote user and technical documentation; worked closely 
with other teams, such as QA, systems analysts, deployment/IT and onsite/client 
professionals for knowledge transfer or requirement clarification etc.; consulted 
clients/colleagues concerning the maintenance and performance of software systems 
and asking questions to obtain information, clarify details and implement information; 
investigated new technologies; constantly updated technical knowledge and skills by 
attending in-house and/or external courses, read manual and accessed new applications; 
problem solving and thinking laterally as part of a team or individually to meet the 
needs of the project; handled administrative responsibilities apart from day-to-day 
work like assistance in recruitment and training. 
The initial filing included human resources documents showing the progression of the Beneficiary's 
employment abroad as an associate starting on September 17, 2007; as a senior associate following a 
promotion on October 1, 2008; and as a senior software engineer following a "redesignation" of the 
compensation structure at the company on April 1, 2009. 
In his RFE, the Director stated that the record does not establish that the Beneficiary's role abroad was 
managerial or executive; that the job duties were vague. In response to the Director's RFE, the 
Petitioner claimed that the duties listed above covered the Beneficiary's employment from September 
2007 to April 2009, and that on April 17, 2009, he "was given managerial level responsibilities as a 
Project Lead to manage software development projects" but was "not formally promoted." It stated 
that his managerial duties and percentages of time devoted to those duties from April 17, 2009, to 
March 1, 2011, included: 
• Recommend hire and fire team members, promote and demote, schedule work and conduct 
performance reviews - 15% 
• Set project goals and timelines and prepare the project schedule - 15% 
• Directed team to design and development of new products/Applications/Functionality- 15% 
• Allocate resources according to the project plan and reallocate resources as required- 10% 
• Lead the meetings with client Business and Product Management group in order to define the 
product roadmap, requirements and prioritization - 10% 
• Provided technical leadership, Led project planning sessions with team members to analyze 
requirements, provide design options, and provide work breakdown estimates - 15% 
• Mentored less-experienced developers and manage their daily work assignments-5% 
• Meet with key stakeholders/managers to set the project goals and determine the methodologies 
to achieve those goals - 5% 
• Lead internal and client steering project progress meetings and created necessary project 
parameters guidelines. Discussed the project risks/issues and jointly working out 
resolutions/mitigations - 10% 
With the RFE response, the Petitioner also submitted copies of emails and asserted that they serve as 
contemporaneous evidence that the Beneficiary was acting in a managerial capacity. The Petitioner 
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Matter ofN-USA, Inc. 
explained that the Beneficiary did not possess a managerial job title while employed by the foreign 
subsidiary but had managerial responsibilities. 
In the denial notice, the Director noted that the position descriptions submitted with the petition and 
in response to the RFE were inconsistent, and that the new description added managerial duties not 
presented with the initial petition. The Director stated that the inconsistencies "create doubt as to the 
reliability of the evidence submitted and the true nature of the beneficiary's role abroad." 
We agree. In its response to the Director's RFE, the Petitioner listed entirely new duties for the 
Beneficiary. The initial description had the Beneficiary performing solely non-qualifying 
operational/technical duties, while the second duty description has the Beneficiary tasked with higher 
level duties. The Petitioner must resolve these inconsistencies with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to an RFE, a petitioner cannot 
offer a new position to a beneficiary, or materially change a position's title, its level of authority within 
the organizational hierarchy, or its associated job responsibilities. A petitioner must establish that the 
position offered to a beneficiary, when the petition was filed, merits classification as a managerial or 
executive position. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
If significant changes are made to the initial request for approval, a petitioner must file a new petition 
rather than seek approval of a petition that is not supported by the facts in the record. The information 
provided by the Petitioner in its response to the Director's RFE did not clarify or provide more 
specificity to the original duties of the position, but rather added new generic managerial duties to the 
job description. 
We note that the Director referenced the Petitioner's prior Form I-140, Immigrant Petition for Alien 
Worker, petition filed on behalf of the Beneficiary for the position of senior software engineer -
micro/web. That petition was filed under the second preference category for advanced degree 
professionals. The labor certification application accompanying the Form I-140 described the 
Beneficiary's employment as a senior software engineer with I I Ltd. from 
September 17, 2007, to February 28, 2011. The job description provided is nearly identical to the 
original job description provided by the Petitioner with the current Form I-140, and shows that 
Beneficiary primarily performed software engineering services during the entire time period in 
question. 2 A letter dated March 11, 2013, from~~----- senior executive of human resources 
at.__ ____ ~~-------' Ltd., submitted with that petition confirms those job duties. It does 
not mention any managerial duties performed by the Beneficiary during his tenure at the foreign 
affiliate in India. 
Therefore we find that the initial position description, corroborated by the previously submitted labor 
certification application and letter from the employer, is the more credible description of the 
Beneficiary's employment abroad. The description submitted with the RFE response seeks to 
artificially elevate the Beneficiary's position, but this new, changed description is not supported by 
2 The description listed on the labor certification application contains all of the duties from the original submission in this 
petition, with the addition of "adhere to D values and applied □ policies and procedures." 
4 
Matter ofN-USA, Inc. 
the record. Thus, the focus on our analysis will be based on the job description submitted with the 
initial petition. 
An employee who "primarily" performs the tasks necessary to produce a product or to provide services 
is not considered to be "primarily" employed in a managerial or executive capacity. See, e.g., sections 
10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); Matter of Church Scientology Int'!, 19 I&N Dec. 593,604 (Comm'r 1988). 
On appeal, the Petitioner states that the statute does not require the Beneficiary to "devote 100% of 
his time to managerial duties as long as at least 51 % of those job duties are managerial in nature." It 
restates the job duties provided in its response to the RFE and states that they are "typical Information 
Systems Managers sole duties" according to the DOL's Occupational Outlook Handbook (OOH). 
However, as noted, we will analyze the initial job description rather than the new description provided 
in response to the RFE. 
Here, the Petitioner has not demonstrated that any of the duties assigned to the Beneficiary in the initial 
description were managerial in nature. Rather, the initial description of the Beneficiary's duties 
showed that he primarily performed software engineering services for the Petitioner's clients. For 
example, the description indicated that he designed, wrote, and tested new software programs; 
developed and maintained existing systems; wrote user and technical documentation; and investigated 
new technologies. The Petitioner has not shown that the Beneficiary performed high-level 
responsibilities and has not established that the Beneficiary was primarily engaged in managerial or 
executive duties, as opposed to ordinary operational activities alongside the Petitioner's other 
employees. 
On appeal, the Petitioner again asserts that the emails submitted with the RFE response serve as 
contemporaneous evidence that the Beneficiary was acting in a managerial capacity. The emails 
provided include statements such as: 
• "I really appreciate all of your efforts in managing and leading the team to complete the first 
release." However, this statement from the Beneficiary's purported superior is dated January 
17, 2009, prior to his claimed start date as project lead on April 17, 2009. 
• "Please target to complete these tasks today." This statement from the Beneficiary to a 
purported subordinate is dated February 16, 2009, prior to his claimed start date as project lead. 
• "I have completed this process for my team." This statement from the Beneficiary to his 
purported superior regarding performance reviews references the completion by another 
employee of his self-assessment, and does not confirm that the Beneficiary actually conducted 
the employee's performance review. 
• "From today until farther instructions, [the Beneficiary] will play the role of a team 
lead/Project Lead." 
• "As per the plan we need to start this on 17th May [2010] and [the Beneficiary] would be the 
Project Lead/POC from offshore perspective." This email from a purported manager of 
development gives a different start date for his claimed role as project lead. 
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Matter ofN-USA, Inc. 
Other emails refer to the Beneficiary as a project lead (November 19, 2010); indicate the Beneficiary's 
dissatisfaction with the qualifications of potential team members (October 25, 2010); and demonstrate 
the Beneficiary giving instructions to his team (July 27, 2009). However, the emails do not 
demonstrate the Beneficiary's employment in a primarily managerial position nor do they serve as 
independent, objective evidence of the Beneficiary's claimed revised duties. They do not resolve the 
discrepancies between the Petitioner's initial claim that the Beneficiary served as a senior software 
engineer from April 1, 2009, to March 1, 2011, and its later claim that he served as a project lead 
during that time period. Instead the emails introduce further discrepancies concerning the date of the 
Beneficiary's claimed elevation to project lead, raising doubt about the claims made. 
Moreover, the incidental performance of the claimed actions as a "project lead" is not sufficient to 
establish that the Beneficiary was primarily engaged in qualifying managerial duties abroad, especially 
in light of the original description of the duties of a senior software engineer in this petition and in the 
previously filed petition. The Petitioner has not resolved the inconsistencies in the job descriptions 
with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 
591-92. 
For the above reasons, the Petitioner has not established that the Beneficiary's primarily performed 
managerial duties abroad. 
B. Staffing 
In an organizational chart and list of job duties submitted in response to the RFE, the Petitioner stated 
the Beneficiary's job as "Senior Software Engineer in the Role of Project Lead" and provided the job 
descriptions for the Beneficiary's subordinates abroad, including "Lead Development," three "Senior 
Software Engineers," and "Member Technical Staff." 
The organizational chart showed that the Beneficiary reported to the senior manager of development, 
and that each of the Beneficiary's purported subordinates holds at least a bachelor's degree. On appeal, 
the Petitioner states that the Beneficiary supervised professionals who "freed up the beneficiary's time 
so that he could do primarily managerial tasks." 
Here, even if we consider the roles oflead development, senior software engineer, and technical staff 
member as professional jobs, the Petitioner has not resolved the inconsistencies in the record regarding 
the Beneficiary's role abroad. He was initially listed as a senior software engineer, with the same roles 
and duties as the other three senior software engineers referenced in the organizational chart. It was 
only in response to the RFE that the Petitioner sought to elevate his position to a managerial role. 
When examining the managerial capacity of a beneficiary, we review the totality of the evidence, 
including descriptions of a beneficiary's duties and his or her subordinate employees, the nature of a 
petitioner's business, the employment and remuneration of employees, and any other evidence 
contributing to a complete understanding of a beneficiary's actual role in a business. The evidence 
must substantiate that the duties of a beneficiary and his or her subordinates correspond to their 
placement in an organization's structural hierarchy and artificial tiers of subordinate employees and 
6 
Matter ofN-USA, Inc. 
inflated job titles are not probative and will not establish that an organization is sufficiently complex 
to support an executive or manager position. 
Because the Petitioner has not established with independent, objective evidence that the Beneficiary 
served abroad in a managerial role as project lead, instead of senior software engineer, we find that 
the organizational chart submitted in response to the RFE is not credible. Moreover, in the absence of 
evidence that the Beneficiary actually primarily performed managerial duties, the existence of 
professional subordinates is not sufficient to demonstrate that the Beneficiary was employed in a 
managerial capacity. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary was 
employed in a managerial or executive capacity abroad. 
IV. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director also found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial capacity. The Petitioner does not claim that the Beneficiary will be employed in an 
executive capacity. 
A. Duties 
The Petitioner initially stated that the Beneficiary's position would include the duties summarized 
below: 
• Manage personnel actions such as making recommendations to hire, fire, promote, schedule 
work and performance reviews of his team members - 15%; 
• Manage, lead and support several projects in Data Services portfolio - 15%; 
• Interface with key stakeholders/managers to determine overall goals and policies, monitor and 
evaluate the progress of the project in meeting its goals and identify resources to fill gaps where 
needed - 20%; 
• Interact with offshore project managers to define and deliver complex features - 10%; 
• Mentor and motivate on-site leads and offshore teams - 5%; 
• Guide project team on technical challenges and client communication- 10%; 
• Create Statement of work (SOW) docs and other supporting documents - 5% 
• Analyze project risks, costs, and benefits -10%; 
• Manage customer issues through Quality Control process and direct team to resolve them in a 
timely manner- 10%. 
It stated that the Beneficiary would be performing these duties on behalf of one of its clients,c=] In 
the RFE, the Director stated that the Beneficiary's job description was too vague to establish whether 
the Beneficiary's duties would be primarily managerial, executive, or neither. The Director asked for 
additional details regarding the offered position. 
7 
Matter ofN-USA, Inc. 
In response, the Petitioner restated the original job description and added explanations of the 
Beneficiary's day-to-day authority for decision making, which expands and elaborates on the first 
bullet of the job description. 
The Director denied the petition, finding that the Beneficiary's job description is based on "broad 
tasks, which suggest a general sense of the beneficiary's heightened degree of discretionary authority 
but fail to convey an understanding of what the beneficiary would actually be doing on a daily basis." 
The Petitioner states on appeal that the Director failed to consider the nine duties of the program 
manager, and states that the duties are "in line" with the description of the program manager position 
in the OOH. The Petitioner's reliance on the general descriptions found in the OOH is misplaced, as 
it does not contain provisions that take into account the statutory and regulatory requirements that are 
relevant in this matter. Specifically, the Petitioner is subject to section 203(b)(l)(C) of the Act as well 
as the definitions and provisions found in 8 C.F.R. § 204.5(j). Both statutory and regulatory provisions 
require the Petitioner to establish that the Beneficiary's proposed employment would be primarily in 
a qualifying managerial capacity. 8 C.F.R. § 204.5(j). Simply meeting general guidelines set out in 
OOH is not sufficient. 
The Petitioner also asserts on appeal that the listed job duties show that the program manager does not 
primarily perform non-managerial tasks, and that the duties are not vague and generalized. We 
disagree. For example, the Petitioner stated that the Beneficiary will manage, lead, and support several 
projects in "Data Services portfolio." It also stated that that the Beneficiary would be performing these 
duties on behalf of one of its clients,c=J However, it is not clear what the "Data Services portfolio" 
is comprised of and whether it is part of the work to be performed for D 
The Petitioner stated that the Beneficiary will interface with key stakeholders/managers to determine 
overall goals and policies, monitor and evaluate the progress of the project in meeting its goals, and 
identify resources to fill gaps where needed. However, it does not identify the key 
stakeholders/managdrs, it ldoes not identify the goals and policies that need to be determined, and it 
does not describe th project or identify a timeline for providing services toe=] It stated that 
the Beneficiary will interact with offshore project managers to define and deliver complex features. 
However, it does not identify the offshore project managers or describe their duties, it does not explain 
how these duties are managerial, and it does not explain what complex features need to be defined and 
delivered. 3 Similarly, it stated that the Beneficiary will mentor and motivate on-site leads and offshore 
teams, but it does not identify the on-site leads and offshore teams, describe their duties, indicate how 
the Beneficiary will mentor and motivate them, or explain how these duties are managerial. 
The Petitioner stated that the Beneficiary will guide the project team on technical challenges and client 
communication, but it does not identify the project team or provide examples of any types of client 
communication or identify who will be responsible for that communication. It stated that the 
Beneficiary will create a SOW, but it doesn't explain how this duty is managerial. The Petitioner 
further stated that the Beneficiary will manage customer issues through the "Quality Control process," 
3 The organizational chart provided by the Petitioner for the~project does not identify any offshore workers on the 
project. 
8 
Matter ofN-USA, Inc. 
but it does not describe the process or identify the Beneficiary's specific role(s) in that process or what 
staff will support him. 
We note that the Petitioner's response to the RFE provided additional detail regarding only one of the 
Beneficiary's original job duties related to managing personnel actions, which covers only 15% of his 
purported daily duties. Although this description provides specific information about his authority to 
make personal decisions, it did not provide additional detail regarding how he spends the other 85% 
of his day. Thus, we cannot determine if the Beneficiary's duties are primarily managerial based on 
the initial job duties and the Petitioner's response to the RFE. 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 ofreiterating the regulations. 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). Here, the 
Petitioner has not provided the necessary detail or an adequate explanation of the Beneficiary's 
activities in the course of his daily routine. 
We also note that the Beneficiary's direct supervisor holds the title of program director, and because 
the record does not contain a description of the program director's duties, the record is not clear how 
the duties of program director and IT program manager differ. In a letter submitted with the petition, 
the Petitioner stated that the Beneficiary's supervisor provides only general guidance to the 
Beneficiary in exercise of his duties, but it does not list the supervisor's duties. It appears likely that 
the pdograj director would perform many of the supervisory duties that are allotted to the Beneficiary 
on th project. 
For the above reasons, the Petitioner has not established that the Beneficiary's position would be 
primarily managerial in nature. 
B. Staffing 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See sections 101(a)(44)(A)(i) and (ii) of the Act. The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead 
is primarily responsible for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act. 
Personnel managers are required to primarily supervise and control the work of other supervisory, 
professional, or managerial employees. The statute plainly states that 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." Section 101(a)(44)(A) of the Act. If a petitioner 
claims that a beneficiary directly supervises other employees, those subordinate employees must be 
supervisory, professional, or managerial, and the beneficiary must have the authority to hire and fire 
those employees, or recommend those actions, and take other personnel actions. Sections 
101(a)(44)(A)(ii)-(iii) of the Act; 8 C.F.R. § 204.5(j)(2). 
With the initial petition, the Petitioner asserted that the Beneficiary will supervise five professionals 
who each possess a bachelor's degree or higher. In the RFE, the Director requested job descriptions 
for all the Beneficiary's subordinates, to determine whether any of them qualify as managers, 
supervisors, or professionals. 
9 
Matter ofN-USA, Inc. 
In response to the RFE, the Petitioner provided an organizational chart showing four programmer 
analysts and one technical specialist as subordinate to the Beneficiary. The Petitioner stated that in 
addition to being a "traditional manager," the Beneficiary's position is also a function manager 
position. It stated that its business is completion of software development projects, and that delivery 
of those projects "is the basis for our existence." Thus, it asserted that "IT Program Management is 
our most important 'essential function."' It stated that the Beneficiary plays a critical role "in ensuring 
the smooth execution and success of [the Petitioner's] projects for its key clients." 
In the denial notice, the Director noted that the organizational chart does not show the Beneficiary's 
position within the overall organizational structure and concluded that the Beneficiary's subordinates 
do not hold positions that are primarily managerial or supervisory in nature. The Director noted that 
the job descriptions of the subordinates are vague and do not clearly show what they do on a daily 
basis or how they relieve the Beneficiary from performing non-qualifying tasks. 
On appeal, the Petitioner states that the Beneficiary's salary shows that "he occupies an important 
position with significant supervisory responsibilities." However, the Beneficiary's salary alone does 
not indicate that his position is primarily managerial in nature. The Petitioner states that the job 
descriptions of the Beneficiary's subordinates show that the program manager does not perform 
primarily non-managerial tasks. It also states that the Beneficiary's subordinates are professionals 
because they all possess bachelor's degree. It states that it does not have to provide an organizational 
chart that "traces [the Beneficiary] up to the CEO." 
While the Director required only "brief' job descriptions of the Beneficiary's subordinates in his RFE, 
the Petitioner must still establish that the Beneficiary's subordinates hold professional positions. In 
evaluating whether a beneficiary manages professional employees, we must evaluate whether the 
subordinate positions 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 
occupation"). Section 101 ( 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 elementary or secondary 
schools, colleges, academies, or seminaries." 
Therefore, we must focus on the level of education required by the position, rather than the degree 
held by subordinate employee. The possession of a bachelor's degree by a subordinate employee does 
not automatically lead to the conclusion that an employee is employed in a professional capacity. 
Here, the descriptions provided establishes by a preponderance of the evidence that the programmer 
analysts are professional employees, but it does not establish that the technical specialist is a 
professional employee. 
However, because the Petitioner has not established that the Beneficiary's duties would be primarily 
managerial in nature as discussed above, particularly in light of the vague duties of the proffered 
position and undetermined duties of the program director, we cannot determine that the Beneficiary is 
a personnel manager who will primarily supervise and control the work of the four programmer 
analysts. 
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Matter ofN-USA, Inc. 
The Petitioner also asserts that the Beneficiary is a function manager. The term "function manager" 
applies generally when a beneficiary does not supervise or control the work of a subordinate staff but 
instead is primarily responsible for managing an "essential function" within the organization. See 
section 10l(a)(44)(A)(ii) of the Act. If a petitioner claims that a beneficiary will manage an essential 
function, it must clearly describe the duties to be performed in managing the essential function. In 
addition, the petitioner must demonstrate that "(1) the function is a clearly defined activity; (2) the 
function is 'essential,' i.e., core to the organization; (3) the beneficiary will primarily manage, as 
opposed to perform, the function; ( 4) the beneficiary will act at a senior level within the organizational 
hierarchy or with respect to the function managed; and ( 5) the beneficiary will exercise discretion over 
the function's day-to-day operations." Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 
2017). 
In this matter, as set forth above, the Petitioner has not clearly described the managerial duties to be 
performed by the Beneficiary. Further, the Petitioner states that the Beneficiary will serve as an IT 
program manager for a single clientr==] but it does not describe how the management of a single 
program for one client is essential to the organization. In a letter submitted with the petition, the 
Petitioner stated that it provides IT business solutions and services to "250+ clients worldwide," but it 
has not described any other programs for any other clients. With only seven of its 390 employees 
devoted to a silgle lroject for one of its more than 250 clients, the Beneficiary's role as IT program 
manager of the project does not appear to be essential to the organization. Further, the Petitioner 
has not established that the Beneficiary will act at a senior level within the Petitioner's organizational 
hierarchy or with respect to the function managed, as it has not provided job descriptions for the 
Beneficiary's supervisor(s) or provided an organizational chart covering the entire organization. We 
cannot determine if the Beneficiary acts at a senior level in the organizational hierarchy or exercises 
discretion over day-today operations without understanding the roles of his supervisors(s) and 
understanding where he fits within the organizational structure of the company. 
Based on the deficiencies discussed above, the Petitioner has not established that it will employ the 
Beneficiary in a primarily managerial capacity in the United States. 
Finally, the Petitioner asserts on appeal that the Director failed to apply the "preponderance of the 
evidence" standard. We disagree. A petitioner bears the burden of establishing eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 
25 I&N Dec. 799, 806 (AAO 2012). A petitioner must establish that it meets each eligibility 
requirement by a preponderance of the evidence. Matter of Chawathe, 25 I& N Dec. 369, 375-76 
(AAO 2010). In other words, a petitioner must show that what it claims is "more likely than not" or 
"probably" true. To determine whether a petitioner has met its burden under the preponderance 
standard, we consider not only the quantity, but also the quality (including relevance, probative value, 
and credibility) of the evidence. Id. at 376; Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). 
The evidence before the Director did not demonstrate that it was more likely than not that that the 
Beneficiary was employed primarily in a managerial capacity abroad, or that the Petitioner will employ 
the Beneficiary in a primarily managerial capacity in the United States. 
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Matter ofN-USA, Inc. 
V. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-USA, Inc., ID# 3355400 (AAO May 14, 2019) 
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