dismissed EB-1C Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-T- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 6, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , a software company, seeks to permanently employ the Beneficiary as a site reliability 
technical analyst lead (also called site reliability engineer lead) 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: (1) the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity; and (2) the Beneficiary has been employed abroad in a managerial 
or executive capacity. 
On appeal , the Petitioner asserts that the Director erred because the record contains sufficient 
information and evidence to establish eligibility by a preponderance of the evidence. 
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)(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 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. § 204.5G)(3). 
Matter of P-T- Inc. 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
The Director found that the Petitioner did not establish that the Beneficiary has been, and will be, 
employed in a managerial or executive capacity. The Petitioner does not claim that the Beneficiary 
has been, or will be, employed in an executive capacity. Therefore, we restrict our analysis to whether 
the Beneficiary will be and has been employed in a managerial capacity. 
Throughout this proceeding, the Petitioner has asserted that the Beneficiary held the same position 
abroad, with the same duties, as he now holds in the United States as a nonimmigrant. Therefore, we 
need not consider the Beneficiary's employment abroad separately from his intended work in the 
United States. 
"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. § l 10l(a)(44)(A). 
Based on the statutory definition of managerial 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 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. 
When examining the claimed managerial 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. 
A. Function Manager 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10l(a)(44)(A)(i) and (ii) of the Act. The term "function manager" applies 
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Matter of P-T- Inc. 
generally when a beneficiary's managerial capacity derives not from supervising or controlling a 
subordinate staff, but instead from primarily 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 a letter submitted with the petition, the Petitioner stated that the Beneficiary's position meets all 
four elements of a managerial position. The Petitioner asserted that the Beneficiary manages a 
function of the organization because he "is responsible for the end-to-end management and 
deployment of several [ of the Petitioner's] products and deployments. Within this process, he assists 
the design and development of fully integrated and highly automated product deployment workflows." 
The Petitioner asserted that the Beneficiary "takes ownership of the development, testing, and 
production server stacks" and "is responsible for the resolution of all project escalations," "frequently 
initiates and oversees the development of large-scale data clusters and collocated servers," and 
"manages critical client software and hardware troubleshooting operations." 
The Petitioner stated that the Beneficiary is both a personnel manager and a function manager, because 
he "manages a team of three professional level employees," specifically site reliability engineers, and 
because he "manages product deployment operations, performance analysis, troubleshooting and 
development functions, all of which are essential within the [Petitioner's] product line." The Petitioner 
asserted that the Beneficiary "exercises the discretion to delegate tasks not only to his direct reports, 
but also to internal engineering and analyst teams when required." 
The Petitioner stated that the Beneficiary has the authority to make recommendations regarding 
personnel matters, and also "functions at a senior level with respect to the Site Reliability functions 
managed" because he "is responsible for analyzing, strategizing, and directing product delivery 
functions. He effective! y oversees the deployments of [ the Petitioner's] proprietary data, management, 
and multiple product solutions." 
Finally, the Petitioner asserted that the Beneficiary "exrcises direction over the day-to-day operation 
of ... product deployment for [the Petitioner's] technologies." The Petitioner stated that the 
Beneficiary divides his time as follows: 
Functional management 60% 
Personnel management 5% 
Project management 10% 
Policy and procedure management 5% 
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Matter of P-T- Inc. 
Corporate and client management 5% 
Testing management 5% 
Escalation management 10% 
Within each of the above categories, the Beneficiary listed three to five "day-to-day tasks," filling 
nearly two pages in all. Under "Functional Management," the Beneficiary listed the following tasks: 
• Manage [the Petitioner'
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s] I I lproduct development and deployment 
• Direct [the Petitioner's] upgrade, troubleshooting and maintenance operations 
• Engage in performance analysis activities both proactive and reactive 
• Oversee a team of professional-level Site Reliability Engineers and their 
development of [ the Petitioner's] c=]products 
• Apply in-depth knowledge of Linux administrative skills, programming languages, 
microservice architectures, systems performance analysis, application debugging 
and computer networking 
The Petitioner indicated that two site reliability technical analysts, also called site reliability engineers, 
report directly to the Beneficiary, and another reports to him indirectly. 
The Director issued a request for evidence (RFE), stating that the "broad and ambiguous" job 
description did not show that the Beneficiary's duties are primarily managerial. The Director also 
stated that the Petitioner did not provide enough information about the Beneficiary's subordinates. 
In response, the Petitioner asserted that site reliability engineering is an essential function because it 
"makes sure that our expanding number of customer deployments continue to deliver insights from 
massive scale data in real time" and "enables our engineers in the field to pre-empt problems before 
they ever threaten our customers' workflows." These assertions attest to the importance of site 
reliability engineering, but do not show that the Beneficiary acts at a senior level with respect to the 
site reliability engineering function. 
Furthermore, the breakdown of the Beneficiary's duties does not indicate authority over site reliability 
engineering overall. Rather, his chief areas of responsibility involve D product development and 
deployment" and I I upgrade, troubleshooting and maintenance operations." The Petitioner did 
not show that these activities are effectively synonymous with site reliability engineering, rather than 
more focused areas within the wider area of site reliability engineering. Likewise, the Petitioner did 
not claim or demonstrate that ~ product development, deployment, and maintenance are, 
themselves, essential functions over which the Beneficiary has a senior level of authority. 
The Petitioner provided more details about the Beneficiary's duties, but these details include elements 
that may indicate operational tasks. For example: 
• Identify feature gaps in [the Petitioner's] software and determine technical changes to be 
implemented 
• Design and implement software and systems deployment plans 
• Creat[ e] a deployment specific process for upgrading a database service 
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Matter of P-T- Inc. 
• Determine and execute procedures for maintenance of [ the Petitioner's] systems in both cloud 
and on premises environments 
The Director denied the petition, stating that the job description is "broad and vague," and does not 
establish that the Beneficiary's tasks and duties are primarily managerial. 
On appeal, the Petitioner asserts that "the highly specialized nature of [the Petitioner's] services are 
concededly not very easy to explain," and that the Beneficiary's "title ... is perhaps a little difficult 
to understand, but not so broad and vague as ... to be incomprehensible." The Petitioner maintains 
that "the vast majority of the time, the beneficiary is supervising and controlling the work of other 
employees and managing [the Petitioner's] site reliability for deployments." The Petitioner also 
asserts that it showed that "the beneficiary manages and directs day-to-day operations as opposed to 
merely performing the function," and that "the beneficiary's subordinates relieve the beneficiary from 
having to perform non-qualifying job duties himself" 
We disagree that the Petitioner has provided enough information to establish that the Beneficiary is 
primarily a function manager. As noted above, the Beneficiary's job description includes several 
duties that appear to be operational tasks, and the Petitioner did not show that the Beneficiary delegates 
these tasks to subordinates. 
Regarding those subordinates, an organizational chart showed the three site reliability engineers under 
the Beneficiary's direct or indirect authority, but the chart showed only those four positions, and thus 
provided no farther information about the Beneficiary's place within the overall organization. This is 
particularly relevant because the Petitioner claimed to employ 1500 people in the United States, and 
stated that the company "currently offer[ s] two products." Given these figures, it is not readily evident 
that an essential function of the organization resides with three employees and their supervisor. 
The Petitioner has not shown that the Beneficiary acts at a senior level in the organization or with 
respect to the function managed. Assuming that site reliability is an essential function, the Beneficiary 
would need have a senior level authority over that function, rather than leading one of several teams 
that perform that function. In this respect, it is significant that the record does not show how many 
site reliability technical analysts and site reliability technical analyst leads the company employs. If 
the Beneficiary is one of many such leads, each of whom works with parallel teams of site reliability 
engineers, then the question arises as to how and why the Beneficiary is the one who manages the site 
reliability engineering function. 
The Petitioner has not answered this question. The Petitioner has not shown that the Beneficiary 
manages the site reliability engineering function for the petitioning entity, or that his specific area of 
responsibility is, itself: an essential function of the organization. 
The Petitioner has not established that the Beneficiary manages an essential function. 
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Matter of P-T- Inc. 
B. Personnel Manager 
The Petitioner has at times asserted that the Beneficiary has been, and will be, a personnel manager as 
well as a function manager. The Petitioner has made the apparently incompatible claims that the 
Beneficiary spends "the vast majority of the time ... supervising and controlling the work of other 
employees," but spends only 5% of his time on "personnel management." 
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 10l(a)(44)(A)(iv) of the Act; 8 C.F.R. 
§ 204.5(i)(4)(i). 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. § 204.5(j)(2). 
To determine whether the 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. 1 
The Petitioner referred to the three site reliability engineers as "professional level," and asserted that 
they hold bachelor's degrees. The available evidence, however, is not sufficient to establish that the 
positions are professional. The Petitioner did not provide more information about the degrees, for 
instance by specifying that those degrees are in computer-related fields, and the Petitioner did not 
show that one must hold a bachelor's degree to qualify for employment as a site reliability engineer. 
The word "engineer" in the job title is not prima facie evidence that the position is that of an "engineer" 
as contemplated in section 10l(a)(32) of the Act; otherwise, an employer could make any occupation 
a profession simply by including the word "engineer" in the job title. 
In the RFE, the Director stated that the Petitioner did not provide important information about the 
Beneficiary's subordinates. In response, the Petitioner provided expanded job descriptions for the 
three site reliability engineers, indicating that they "maintain a wide variety of hardware and cloud 
servers," "[c]ontribut[e] to the hands on maintenance of 'low touch' deployments," and "[r]espond[] 
in real time to deployment incidents." The Petitioner claims to have provided "a detailed description 
of their job duties," but the descriptions provided offer only a general idea of the nature of the site 
reliability engineers' work. Those descriptions do not show that the Beneficiary's role is primarily to 
direct and oversee those individuals, rather than to work alongside them while also holding some 
supervisory responsibilities such as assigning specific tasks. 
The Petitioner has asserted that the Beneficiary is a personnel manager, but the Petitioner has also 
claimed that the Beneficiary devotes considerably more time to function management than to 
1 Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a United States 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." 
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Matter of P-T- Inc. 
personnel management. The Petitioner did not show that the Beneficiary's stated authority over two 
direct reports and one indirect report amounts to a primary element of his job duties. 
Furthermore, we note that each subordinates' formal job title is "Site Reliability Technical Analyst," 
which is the same title shown on the Beneficiary's own March 2016 job offer letter from the Petitioner. 
The Beneficiary's own title of "Site Reliability Technical Analyst Lead," also stated as "Site 
Reliability Engineer Lead," suggests that the Beneficiary has some degree of authority over the others, 
but only as a higher-ranking engineer rather than as a manager with greatly reduced operational duties. 
The Petitioner has not adequately supported its claim to employ the Beneficiary as a personnel 
manager. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary was 
employed abroad, and will be employed in the United States, in a managerial capacity. 
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. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-T-Inc., ID# 5510663 (AAO Sept. 6, 2019) 
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