dismissed EB-1C Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 10898297 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: NOV. 27, 2020 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a software engineering company, seeks to permanently employ the Beneficiary as its 
"Lead Project Manager" under the first preference immigrant classification for multinational 
executives or managers. See 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 Texas 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 Director also entered a separate finding of willful 
misrepresentation of a material fact against the Petitioner. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal and affirm 
the Director's denial of the petition because the Petitioner did not establish that the Beneficiary's U.S. 
position would be in a managerial capacity.1 Since the identified basis for denial is dispositive of the 
appeal, we decline to reach and hereby reserve the Petitioner's arguments regarding the Beneficiary's 
employment abroad. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not 
required to make findings on issues the decision of which is unnecessary to the results they reach"); 
see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues 
on appeal where an applicant is otherwise ineligible). 
Notwithstanding our decision to affirm the denial, we will withdraw the Director's conclusion that the 
Petitioner willfully misrepresented material facts. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
1 The Petitioner claims that the Beneficiary would be employed in the United States in a managerial capacity. The 
Petitioner does not claim that the Beneficiary has been or would be employed in an executive capacity. 
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. § 204.50)(3). 
II. WILLFUL MISREPRESENTATION OF MATERIAL FACTS 
To make a finding of willful misrepresentation of a material fact in visa petition proceedings, an 
immigration officer must determine: 1) that the petitioner or beneficiary made a false representation 
to an authorized official of the United States government; 2) that the misrepresentation was willfully 
made; and 3) that the fact misrepresented was material. See Matter of M-, 6 l&N Dec. 149 (BIA 1954); 
Matter of L-L-, 9 l&N Dec. 324 (BIA 1961); Matter of Kai Hing Hui, 15 l&N Dec. 288 (BIA 1975). 
As outlined by the Board of Immigration Appeals, a material misrepresentation requires that one 
willfully makes a material misstatement to a government official for the purpose of obtaining an 
immigration benefit to which one is not entitled. Matter of Kai Hing Hui, 15 l&N Dec. at 289-90. The 
term "willfully" means knowing and intentionally, as distinguished from accidentally, inadvertently, 
or in an honest belief that the facts are otherwise. See Matter of Tijam, 22 l&N Dec. 408, 425 (BIA 
1998); Matter of Healy and Goodchild, 17 l&N Dec. 22, 28 (BIA 1979). To be considered material, 
the misrepresentation must be one which "tends to shut off a line of inquiry which is relevant to the 
alien's eligibility, and which might well have resulted in a proper determination that he be excluded." 
Matter of Ng, 17 l&N Dec. 536, 537 (BIA 1980). 
Here, the Director discussed the contents of three employee affidavits, a transcribed Skype 
conversation between two of the employees, and an email from an employee to the USCIS officer who 
conducted the site visit. The Director made the following determinations: 
1. The affidavits of the three employees who were present at the Petitioner's place of business at 
the time of the USCIS site visit did not "address the issue of the [B]eneficiary's managerial 
capacity or role with the [P]etitioner, or any of the factual details regarding the nature of the 
[B]enficiary's employment"; 
2. The transcribed Skype conversation that took place on the day of the site visit between two of 
the Petitioner's employees, finding that the transcription is not credible because it is an "edited 
version of the actual communication and contains formatting errors and missing information"; 
and 
3. The email correspondence "is also an edited document and contains headings written by 
I I explaining when the replies and messages were sent." 
In sum, the Director found that (1) the referenced documents lack credibility because they "are 
secondary and tertiary in nature and are edited for content" and (2) that the documents are not relevant 
2 
or probative regarding the claims made in the petition on the issue of the Beneficiary's managerial 
authority over her claimed subordinates. 
Although the Director concluded that the Petitioner willfully misrepresented the Beneficiary's role, 
we do not agree that the deficiencies described above rise to the level of willful and material 
misrepresentation. Moreover, the Director's determination that the above documents were not 
relevant indicates that they are not material to the issue of eligibility and thereby cannot serve as a 
basis for a finding of willful misrepresentation. Despite pointing to deficiencies in the Petitioner's 
supporting evidence, the Director did not establish that those deficiencies are material to the 
Beneficiary's eligibility. Therefore, we will not affirm the Director's finding. As noted earlier, 
however, this petition does not warrant approval because the Petitioner did not establish that the 
Beneficiary's U.S. position would be in a managerial capacity. 
Ill. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The remaining issue to be addressed is whether the Petitioner provided sufficient evidence establishing 
that the Beneficiary's position in the United States would be in a managerial capacity. Although the 
Petitioner claims that the Beneficiary's position will involve managing subordinates who are 
professional employees, it indicates that the Beneficiary's foremost responsibility will be managing 
"the crucial function of project management" with respect to one of the Petitioner's "key clients." 
"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 
101(a)(44)(A) of the Act. 
The statutory definition of "managerial capacity" al lows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act. The term "function manager" applies 
generally when a beneficiary does not primarily 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. 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 wi 11 exercise discretion over 
3 
the function's day-to-day operations." Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 
2017). 
A. Factual Background 
The petition form shows that the Petitioner claimed a gross income of $8 million and a workforce of 
ten employees. In a supporting cover letter, the Petitioner stated that it seeks to employ the Beneficiary 
"in a managerial position of Project Manager" so that she can assist the Petitioner's efforts in providing 
IT solutions to clients in the private and public sector. The Petitioner provided a sample list of 18 of 
its clients, noting that there were "many others" who were not specifically named. The Petitioner also 
provided the Beneficiary's job duty breakdown, stating that in the course of managing "all aspects of 
the software development projects" for the I I one of the Petitioner's 
"many" clients, the Beneficiary allocates her time to "performing project management tasks," 
overseeing "managerial and professional subordinates" and managing human resources in the course 
of such oversight, "setting goals, policies, and procedures for projects under her purview," and 
"performing business development activities." The Petitioner stated that the Beneficiary would 
occupy a "senior leadership role ... within the organization's overall hierarchy" where her focus 
would be on a single client and the work performed by three project managers and one "technical 
manager" who also support the projects associated with that client. 
The Petitioner also provided an organizational chart showing that the entity is comprised of a software 
development division, a sales division, and "administration." The chart indicates that there are 16 U.S.­
based positions, including two in "administration," three in the sales division, and the rest in the 
software development division, which is comprised of a "CTO," a senior project director, and an 
"Offshore Division." The Beneficiary is depicted as one of two lead project managers, both 
subordinate to the senior project director, and is shown as overseeing two offsite project managers, a 
support engineer, a senior software architect, and project manager, the latter of which is shown as 
"open," thereby indicating that it was likely vacant at the time of filing. 
In addition to the organizational chart, the Petitioner provided a document titled "Employees in United 
States," which names 16 employees, including the Beneficiary and her two subordinates, and lists their 
respective position titles, educational credentials, and supervisors. 2 
In response to a request for evidence (RFE), the Petitioner resubmitted the organizational chart and 
the above described employee list. The Petitioner also provided an RFE response letter stating that 
the Beneficiary manages projects for "one of [its] key clients," which includes coordinating visits to 
the client's work site, ensuring resolution of client problems, meeting with the client "for period 
reviews of prototypes and final products," and identifying areas where improvement is needed. The 
Petitioner reiterated that in the course of fulfilling her managerial responsibilities the Beneficiary 
oversees two U.S.-based subordinates and two Russia-based subordinates, who oversee 18 employees 
working in Russia. 
2 Two additional positions were listed, including the project manager position that was depicted as one of the Beneficiary's 
subordinates. However, both positions are shown as "open" to indicate that they were vacant at the time of filing. 
4 
In response to a subsequently issued notice of intent to deny, the Petitioner stated that the Beneficiary 
will manage "the crucial function of project management as to one of our key clients." The Petitioner 
emphasized that the Beneficiary carries out personnel oversight duties in the course of managing the 
"crucial function," highlighting the Beneficiary's authority to assign work to her subordinates, monitor 
their progress and performance, and make recommendations for personnel actions. Notwithstanding 
the personnel management element of the Beneficiary's position, the Petitioner stated that the 
Beneficiary "exercises discretion over day-to-day operations of the activities and functions she 
manages" and is therefore employed in a managerial capacity. 
On appeal, the Petitioner disputes the denial and clarifies the type of "work style" that is common 
within its organization, stating that its staff communicates using "JIRA collaboration," rather than 
email, and that lack of email communications between the Beneficiary and her subordinates should 
not be interpreted as the Beneficiary's lack of managerial authority. The Petitioner points to previously 
submitted "JIRA tickets" as evidence that the Beneficiary instructed employees to take corrective 
actions to address various IT issues. 
B. Analysis 
Despite claiming that the Beneficiary would manage projects and direct personnel within the context 
of servicing the I I which the Petitioner describes as a "key" client, the 
Petitioner did not establish that this client constitutes a function that is essential to the organization. 
As determined in Matter of G-, the term "essential function" applies to an activity that is "core" to an 
organization and as such, it must be managed by someone who is "key" within the organization and 
who in turn is able to "advance their organizations' core activities." Adopted Decision 2017-05. In 
the matter at hand, the Petitioner states that the Beneficiary would manage the client relationship with 
the~ _________ ___, which is one of more than 18 public and private entities that 
comprise the Petitioner's client base. Although the Petitioner asserts that the Beneficiary assumes a 
"key senior managerial role" with respect to the,__ _________ ___, it does not explain 
how this client is essential or core to the organization. Rather, the Petitioner emphasizes the 
Beneficiary's key role with respect to the client, focusing on her managerial authority over the 
employees who carry out the operational tasks that are critical to servicing this client. The Petitioner 
does not explain why it claimed ten employees in the petition form, but later submitted an 
organizational chart and employee list identifying 16 U.S. employees total. The Petitioner must 
resolve this discrepancy in the record with independent, objective evidence pointing to where the truth 
lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
Further, because the Petitioner does not indicate that there is a hierarchy among the 18+ clients it 
serves, it is unclear whether the,__ _________ ~ is more critical to the Petitioner's 
organization in comparison to its other clients. Merely demonstrating that the Beneficiary manages a 
function within the organization - in this case a particular client - is not sufficient for the purpose of 
determining that the Beneficiary is a function manager under section 101(a)(44)(A) of the Act. As 
noted earlier, the Petitioner must establish that not only does the Beneficiary manage a function with 
the organization, but also that the function managed is essential or core to the organization. See Matter 
of G- Inc., Adopted Decision 2017-05 (concluding that the financial planning and analysis (FP&A) 
function of the petitioning entity was "essential" because its "revenue planning and forecasting process 
5 
impacts every business unit and geographic area within the worldwide organization" and the 
"executive team and board of directors depend on these FP&A reports and strategies to drive [the 
petitioner's] financial health and make critical decisions regarding mergers and acquisitions"). In this 
instance, although the Beneficiary may play a critical role in managing the personnel and workflow 
surrounding the projects that are specifically associated with thel lthe 
Petitioner does not claim, nor does the record demonstrate, that the client itself constitutes an essential 
function within the context and hierarchy of the Petitioner's overall organization. 
In light of the deficiencies described above, we conclude that the Petitioner has not established that 
the Beneficiary will primarily manage an essential function within the organization. 
ORDER: The appeal is dismissed. 
6