dismissed EB-1C Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-T-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 8, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , an IT software product development company, seeks to permanently employ the 
Beneficiary as its "CEO" under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b )(1 )(C), 8 U.S.C. 
§ 1153(b )( 1 )(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 Petitioner did not 
establish, as required, that the Beneficiary was employed abroad and would be employed in the United 
States in a managerial or executive capacity. The Petitioner subsequently filed a motion to reconsider 
with supporting arguments. Although the merits of the Petitioner's claims were considered, the 
Director issued a new decision affirming the grounds that were cited in the original denial. 
On appeal, the Petitioner disputes the adverse decision and contends that the Director did not properly 
consider the evidence in light of the circumstances pertaining to the petitioning entity. The Petitioner 
asserts that the Beneficiary has been and would continue to be employed in an executive capacity. 
Upon de nova review , we find that the Petitioner has not established that the Beneficiary would be 
employed in an executive capacity. Based on the dispositive effect of our finding, the appeal will be 
dismissed and we will reserve the issues regarding the Beneficiary's foreign employment in a 
managerial or executive 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 
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 
Matter of P-T-, Inc. 
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. EXECUTIVE CAPACITY IN THE UNITED STATES 
The primary issue to be addressed is whether the Petitioner provided sufficient evidence demonstrating 
that the Beneficiary would be employed in an executive capacity. 1 
"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 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). 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); 
Champion World, 940 F.2d 1533. 
The Petitioner must provide a job description that clearly describes the duties to be performed by the 
Beneficiary and indicate whether such duties are in an executive capacity. See 8 C.F.R. § 204.5(j)(5). 
Beyond the required description of the job duties, we examine the company's organizational structure, 
the duties of the Beneficiary's subordinate employees, the presence of other employees to relieve the 
Beneficiary from performing operational duties, the nature of the business, and any other factors that 
will contribute to understanding the 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, its staffing levels, and its organizational structure. 
A. Supporting Evidence 
The petition form was filed in July 201 7 and indicates that the Petitioner had six employees at the time 
of filing. In a supporting statement, the Petitioner stated that it would "soon [be] launching" its own 
proprietary software platform that will enable "high quality mixed reality presentations" at a low cost. 
The Petitioner also provided several consulting agreements and corresponding invoices from 2015 and 
2016, which indicate that in addition to creating a software platform the Petitioner also provided 
software development and design services. The Petitioner did not provide a list of the Beneficiary's 
proposed job duties under an approved petition, but stated that the Beneficiary's position in the United 
States thus far has entailed "handling the complete management logistics, distribution and technical 
1 As the Petitioner does not claim that the Beneficiary's U.S. employment would be in a managerial capacity, we will not 
address this issue. 
2 
Matter of P-T-, Inc. 
support management" as well as expanding the business by means of "new strategies and programs." 
The Petitioner also stated that the Beneficiary is responsible for hiring a management team to oversee 
projects and provide technical support for hardware and software, supervising "top management 
personnel," "[p ]roviding key strategic technology and project management directives," managing 
finances, developing human resource policies, attending trade shows, identifying "potential business 
deals," and reporting to its affiliate in India. The Petitioner emphasized the Beneficiary's "executive 
level experience" and his "in-depth knowledge of [ the Petitioner's] proprietary technologies, processes 
and policies." 
The Petitioner stated that it has hired ten employees so far and projected hiring 25-50 additional 
employees within the next two years. It provided an organizational chart showing the Beneficiary at 
the top of the hierarchy overseeing a director, a vice president of engineering, an employee in India, a 
chief operations officer (COO), and a chief marketing officer (CMO). With the exception of the 
director, each of the Beneficiary's subordinates was shown as having from two to five subordinates, 
although no names were provided for the vice president of operations, who was depicted as one of the 
COO's four five subordinates, or for the vice presidents of marketing and sales, who were depicted as 
subordinate to the COO. Aside from these three unnamed positions, the chart provided names and 
position titles for 1 7 employees, including the Beneficiary, thereby indicating that the Petitioner had 
1 7 employees at the time of filing. 
In response to the Director's request for evidence (RFE), the Petitioner provided organizational charts 
depicting its staffing hierarchy in April and September 2018. Each chart was accompanied by a 
corresponding employee list which identified a direct superior and listed brief job responsibilities for 
each named employee. The list also included each employee's hourly wage and stated that in addition 
to the hourly wage, each individual would receive "future stocks" for fulfilling their role. Although 
each employee was said to be "taking discounted compensation as an investment into future growth," 
the Petitioner did not disclose the specific terms of the "discounted compensation" package or provide 
employment contracts memorializing the terms of such a package. However, the Petitioner provided 
quarterly tax returns, wage reports, and payroll summaries listing the names of employees who were 
paid wages prior to, at the time of: and after the filing of the petition. Although these documents 
consistently show nine part- and full-time employees at the time of filing, they are inconsistent with 
the petition, which indicate that the Petitioner had six employees at the time of filing and neither the 
wage documents nor the petition is consistent with the organizational chart submitted at the time of 
filing, which listed the names of 17 employees. 
The Petitioner provided an additional job duty breakdown indicating that the Beneficiary would 
allocate 50% of his time- 10% each-to the following activities: hiring project managers and technical 
support and service managers, providing "key strategic technology and project management 
directives," creating personnel and HR policies, setting guidelines for managing quality and technical 
support, and identifying business partners. The Petitioner stated that the Beneficiary would spend 
20% of his time supervising "management personnel" through a quarterly review process, another 
20% identifying potential business deals, and a total of 10% supervising finances by reviewing 
monthly reports from the chief financial officer (CFO) and reporting to the foreign affiliate entity in 
India. The Petitioner added that the Beneficiary will manage investor relations and oversee customer 
relations, create business proposals, make presentations to prospective investors, and update current 
3 
Matter of P-T-, Inc. 
investors, but did not state how much of the Beneficiary's time would be allocated to these operational 
job duties. 
The Director subsequently denied the petition finding that the Petitioner provided a deficient job 
description that did not adequately specify the Beneficiary's daily job duties within the context of its 
organization. The Director also pointed to information in the Petitioner's April and September 2018 
employee lists, which indicate that only two employees report directly to the Beneficiary and neither 
receives compensation that is commensurate with full-time employment. The Director questioned the 
Petitioner's ability to relieve the Beneficiary from having to perform primarily non-executive job 
duties in light of the limited compensation, which arguably corresponds to a limited number of hours 
each of the Beneficiary's subordinates spent performing critical operational tasks that would be 
deemed as non-executive. 
The Petitioner filed a motion to reconsider asking the Director to take into account its early stage of 
development and its goal to focus on launching its product in lieu of expanding its staff. Although the 
Director considered the merits of the Petitioner's arguments, the original decision was affirmed and a 
new denial was issued based on the finding that the Petitioner did not overcome the adverse findings 
cited in the original denial. The Director took into account the Petitioner's claims and evidence 
regarding its staffing composition and employee salaries and determined that the Petitioner did not 
have sufficient staffing to relieve the Beneficiary from having to primarily perform non-executive job 
duties. The Director also found that the Petitioner did not provide sufficient details about the 
Beneficiary's job duties and noted that creating and protecting intellectual property and working with 
suppliers, customers, vendors, and investors are not indicative of executive tasks. 
On appeal, the Petitioner contends that the Beneficiary "is necessary for the wellbeing of [the 
Petitioner]' s operations and disputes "the near impossible assumption that [ the Beneficiary] was doing 
everything to bring such a complex product to market." The Petitioner claims that more than half of 
the Beneficiary's time is spent performing executive job duties and asserts that "designated full-time" 
managers and engineers were required to allow the Beneficiary to "do his duties." 
B. Analysis 
We find that the Petitioner has not established that it had the ability to support the Beneficiary in an 
executive position based on the circumstances that existed at the time of filing. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within 
an organization or major component or function of the organization, and that person's authority to 
direct the organization, major component, or function. Section 10l(a)(44)(B) of the Act. Under the 
statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. Thus, to show that a beneficiary will "direct the management" of an 
organization or a major component or function of that organization, a petitioner must show how the 
organization, major component, or function is managed and demonstrate that the beneficiary primarily 
focuses on the broad goals and policies of the organization, major component, or function, rather than 
the day-to-day operations of such. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the organization, major 
4 
Matter of P-T-, Inc. 
component, or function as the 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." Id. 
Although the Petitioner has adequately demonstrated the Beneficiary's use of discretionary authority, 
it has not provided sufficient evidence to show how the Beneficiary will "direct the management" of 
the organization or how it would relieve the Beneficiary from having to primarily perform non­
executive job duties based on the organization's staffing composition at the time this petition was 
filed. As noted earlier, the Petitioner stated that the Beneficiary would engage in certain operational 
activities, such as overseeing customer relations, creating business proposals, and making 
presentations to prospective investors, but it did not indicate how much of the Beneficiary's time 
would be allocated to these non-executive job duties. 
Further, the Petitioner indicated that the Beneficiary would allocate 20% of his time to "supervising a 
team of top management personnel" and 10% providing guidance in the areas of"strategic technology" 
and "project management directives." However, the record remains ambiguous as to who would 
comprise the "team of top management personnel" and who would implement the Beneficiary's 
directives in light of the Petitioner's payroll summary, which shows that the employees who were 
depicted as "top management personnel" in the Petitioner's original organizational chart were not 
compensated wages commensurate with those of full-time employees. The payroll summary shows 
that the COO and the CMO, both depicted as the Beneficiary's direct subordinates, were paid $50 and 
$500, respectively, during the two-week period that included the date this petition was filed. Although 
the organizational chart also depicted a VP of engineering and a "Director" in the Beneficiary's 
subordinate management tier, it appears that the VP of engineering position was vacant at the time of 
filing as no name was provided in the space dedicated to that position, and whilel I was named in 
thl positirn of "Director," that name was not included in the payroll summary nor was other evidence 
of s employment submitted, thus leading us to question whether the "Director" position was 
filled and able to support the Beneficiary at the time of filing. 
As noted above, the Petitioner provided two additional organizational charts dated April and 
September 2018, which named a VP of engineering but otherwise depicted the same management 
reporting structure as shown in the original organizational chart. 2 Despite the hierarchies depicted in 
all three organizational charts - the one submitted at the time of filing and the two charts reflecting 
staffing in April and September 2018 - the information sheets that accompanied the 2018 charts show 
that the Beneficiary has only two direct reports - a VP of engineering and a C00 3 - and indicates that 
each subordinate is compensated at a rate of $50/hour "plus future stocks for help in setting up 
operations." However, these pay rates are inconsistent with these employees' respective stock option 
agreements that were executed in April 2016. Specifically, the agreements show that the VP of 
engineering and COO would provide their services in exchange for an "equity compensation package," 
2 In general, we note that the Petitioner must establish that all eligibility requirements for the immigration benefit have 
been satisfied rrom the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b )(1 ). Therefore, any 
staffing changes that may be reflected in the later organizational charts will not be discussed, as they do not address the 
issue of the Petitioner's eligibility at the time of filing. 
3 Although the chart includes a CMO among the top management tier rep01ting to the Beneficiary, the employee 
information sheet states that this position reports to the board of directors and only "indirectly" reports to the Beneficiary. 
5 
Matter of P-T-, Inc. 
which was valued at "0.5% of the total company stocks" but which would not vest until the Petitioner 
is able "to secure next round of funding above $5 million." Unlike the information provided in the 
employee information sheets, these agreements indicate that the stock options would take the place of 
a base compensation package, rather than being offered as supplemental compensation. The Petitioner 
must resolve these inconsistencies in the record with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The 2016 stock option agreements also included termination provisions that further lead us to question 
whether the Petitioner actually employed a VP of engineering and COO at the time of filing. Namely, 
the agreements stated that if the claimed employment of the VP of engineering or the COO should 
terminate before their stock options vest, regardless of whether the termination is at the will of the 
company or at the will of the claimed employee, the terminated individual would forego their stock 
option entirely. In other words, these questionable and possibly unenforceable agreements make it 
possible for the Petitioner to receive services from "top management personnel" without compensating 
the service providers either at the time the services are rendered or in the future. Thus, the Petitioner's 
contention that "stock options are considered a valid and a good way of compensating for work done 
by the employee" is not valid, as this agreement contains provisions that would preclude an employee 
from collecting their compensation, even for services rendered. 
Moreover, the record contains an affidavit from the Petitioner's COO stating that the stock option was 
accepted as a means of offsetting the "reduced salary." According to the stock option agreement, 
however, there is no indication that the COO was entitled to a salary beyond the stock option and 
according to the Petitioner's 2017 third quarterly wage report, the COO was compensated only $100 
during the course of a three-month period, thus indicating that the stock option was that individual's 
only compensation. In light of these deficiencies, we are unable to determine how much time the COO 
would devote to the assigned position or the duties that position would entail. The affidavit also states 
that the COO planned to "volunteer[] 20-60 hours per week ... for development and launch" of the 
Petitioner's product. However, this information alone is not sufficient as the Petitioner did not 
describe the COO's assigned job duties or establish the amount of time needed to carry out those 
duties. This lack of critical information detracts from our ability to ascertain how the Petitioner's "top 
management personnel" would relieve the Beneficiary from having to perform primarily non­
executive job duties. 
Further, the Petitioner has not provided sufficient evidence to support the claim that critical operational 
job duties, such as formalizing and protecting the Petitioner's intellectual property, have been executed 
by subordinate staff and patent consultants. Although the Petitioner provided several consulting 
agreements and invoices for consulting work, the Petitioner was identified as the consultant, rather 
than the client, in such agreements. It is therefore unclear who was providing the Petitioner with 
consulting services. The record is equally deficient in evidence showing that the Petitioner had 
sufficient staff to carry out other operational duties as may be needed in the course of its business. 
Although the Petitioner provided its 2017 third quarter wage report during which this petition was 
filed, that document shows that only four employees, including the Beneficiary, were paid salaries that 
are commensurate with full-time employment. The remaining employees, including a technical 
marketing employee, the director of finance, the marketing and sales manager, the COO, and the CMO, 
were compensated quarterly wages ranging from $3000 as the highest wage - paid to the CMO - to 
6 
Matter of P-T-, Inc. 
$100 as the lowest wage - paid to the COO. The Petitioner asks us to assume that it had a "marketing 
and operations team" and claims that "it is more probable than not to conclude that the managers were 
working sufficient number of hours to allow the [Beneficiary] to do his duties." However, the 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
The Petitioner also states that it is "an early stage company" thus requiring the Beneficiary to allocate 
"sufficient attention" to operational duties, like vendor and partner relations. The Petitioner contends 
that lack of participation from the CEO, i.e., the Beneficiary, at this early stage of development would 
be detrimental to the company's well-being. We note, however, that while we consider the Petitioner's 
stage of development, this factor does not excuse the Petitioner from having to meet critical eligibility 
criteria, among which is the requirement that the Beneficiary must allocate his time primarily to 
executive-level job duties. 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 l0l(a)( 44)(A) and (B) of the Act (requiring that one "primarily" 
perform the enumerated managerial or executive duties); Matter o_f Church Scientology Int 'l, 19 I&N 
Dec. 593, 604 (Comm'r 1988). Although the Petitioner anticipates that an upcoming "larger 
investment" would allow it to hire additional personnel so that the Beneficiary can "abstract out and 
delegate more of his responsibility and work to a larger staff:" our determination of the Petitioner's 
eligibility must be based on the facts and circumstances that existed at the time this petition was filed. 
8 C.F.R. § 103.2(b)(l). 
In whole, the Petitioner has not provided sufficient evidence to substantiate the staffing hierarchy that 
is depicted in its organizational charts, nor has the Petitioner established that the employees to whom 
it paid wages at the time this petition was filed were sufficient to relieve the Beneficiary from having 
to primarily perform operational tasks. Rather, the Petitioner has offered confusing and conflicting 
information about staff compensation, contending that a number of its claimed employees volunteer 
their services in exchange for future stock options, which are not guaranteed and appear to replace, 
rather than supplement, basic compensation packages. As previously noted, the Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Chawathe, 25 I&N Dec. at 
376. We farther note that if USCIS finds reason to believe that an assertion stated in the petition is 
not true, it may reject that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § 1154(b); Anetekhai 
v. INS, 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 
(D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). Here, given the one­
sided terms of two questionable stock option agreements that strongly favor the Petitioner and offer 
no definite compensation to two of the Petitioner's claimed "top management personnel," we are 
precluded from gauging precisely whom the Petitioner employed at the time of filing and how the 
Petitioner's staffing at that time would support the Beneficiary's executive position so that he could 
primarily "direct the management" and "establish the goals and policies" of the organization. 
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 immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
7 
Matter of P-T-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-T-, Inc., ID# 6108556 (AAO Oct. 8, 2019) 
8