dismissed EB-1C Case: Software Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 16588793 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 05, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as a software services and internet consulting company, seeks to 
employ the Beneficiary as "Vice President- Database Practice" 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). 
The Director of the Texas Service Center denied the petition, concluding the Petitioner did not 
establish that the Beneficiary was employed in a managerial or executive capacity abroad prior to his 
entry into the United States as a nonirnmigrant. Further, the Director determined the Petitioner did 
not demonstrate that the Beneficiary would be employed in a managerial or executive capacity in the 
United States. 
On appeal, the Petitioner asserts the submitted evidence sufficiently establishes that the Beneficiary 
was employed abroad as a personnel manager overseeing subordinate supervisors and professionals. 
The Petitioner also contends that the Beneficiary would be employed as an executive in the United 
States and points to his subordinate supervisors and professionals . 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. The 
Petitioner did not sufficiently establish that the Beneficiary would be employed in a managerial or 
executive capacity in the United States. Since the identified basis for denial is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve its appellate arguments regarding whether 
Beneficiary was employed abroad in a managerial or executive capacity. 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 I&N Dec. 516, 526 n. 7 
(BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise 
ineligible). 1 
1 We acknowledge that United States Citizenship and Immigration Service (USCIS) records indicate that the Beneficiary 
was previously approved for L-1 A intracompany transferee nonimmigrant visas filed by the Petitioner, a category largely 
mirroring the immigrant classification for multinational executives or managers. However , each petition filing is a separate 
proceeding with a separate record and a separate burden of proof. In making a determination of statutory eligibility , USCIS 
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 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 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(j)(3). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue we will address is whether the Petitioner established that the Beneficiary would be 
employed in an executive capacity in the United States. The Petitioner does not claim on appeal that 
the Beneficiary would be employed in a managerial capacity in the United States. Therefore, we 
restrict our analysis to whether the Beneficiary would be employed in an executive capacity. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
When exammmg the executive capacity of a given beneficiary, we will review 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 an executive capacity. 
8 C.F.R. § 204.5(j)(5). 
A. Duties 
To be eligible as a multinational executive, the Petitioner must show that the Beneficiary will perform 
the high-level responsibilities set forth in the statutory definition at section 101 ( a)( 44 )(B)(i)-(iv) of the 
Act. If the record does not establish that the offered position meets all four of these elements, we 
cannot conclude that it is a qualifying executive position. 
is limited to the information contained in that individual record of proceeding. 8 C.F.R. § 103.2(b )(16)(ii). The Director's 
decision does not indicate whether they reviewed the prior approvals of the other nonimmigrant petitions. Tfthe previous 
nonimmigrant petitions were approved based on the same evidence contained in the current record, their approval would 
constitute an error on the part of the Director. We are not required to approve applications or petitions where eligibility 
has not been demonstrated, merely because of prior approvals that may have been erroneous. Matter of Church Scientology 
Int'/, 19 l&N Dec. 593, 597 (Comm'r 1988). 
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If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must 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). In determining whether a given beneficiary's 
duties will be primarily executive, we consider the petitioner's description of the job duties, the 
company's organizational structure, the duties of a 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 a beneficiary's actual duties and 
role in a business. 
The Petitioner stated that it and its affiliated companies, including the Beneficiary's former foreign 
employer, provide information technology services to "over 700 customers across the United States, 
India, and Europe" and it indicated that "it has carved a niche in cutting-edge Digital Technologies 
and ... evolved a full-fledged offshore process model." The Petitioner asserted that the Beneficiary has 
been employed in the United States as an L-lA nonimmigrant since April 2017 as "Vice President­
Database and Business Intelligence Practice." The Petitioner explained the Beneficiary was 
responsible for managing the "US Database, Business Intelligence and Big Data based engineering 
organization to ensure program/project delivery across key Fortune 50 customers." It submitted the 
following duty description for the Beneficiary: 
Managerial Duties- Project Execution, Goal Adherence, Employee Management: 
• Applicant along with his team of Delivery and Program Managers is responsible 
for planning and setting up goals for the periodic releases and timely project 
execution while achieving the set quality objectives (goal adherence) - 20% 
• Managing successful delivery to the plan of all data analytics related activities in 
the projects executed across the Engineering organization. Employee time and 
performance management, hiring retention and training, control through daily 
review meetings with the team on the schedule of the projects, phase of project 
execution, scope management, quality and planning for successful launches. - 20% 
Customer Satisfaction: 
• Responsibility to lead important dashboard/portfolio reviews with important 
stakeholders (for customer satisfaction) including important project kickoffs, status 
updates for flagship projects, Milestone tracking and updates, Signoff reviews and 
managing Production rollouts. - 20% 
Presales Responsibility: 
• Responsibility to manage presales and sales activity data analytic related projects, 
creation of functional proof of concepts, sales collateral and proposals to be 
presented in sales calls to clients, translating proposals to statement of work to 
project initiation - 10% 
Non-managerial duties-Technical training and development: 
• Managing the design of optimal architectural solutions on analyzing the specific 
platform and technology stack used by the client. - 10% 
• Conducting code reviews of the solutions developed, setting up goals to ensure 
standard practices are followed to ensure efficiency in function and reusable and 
modular code is deployed. - 10% 
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• Performance tuning of applications from time to time, implementing code level 
architecture level and platform level solutions to ensure high scalability and 
availability. - 10% 
The Petitioner submitted a U.S. duty description for the Beneficiary that does not credibly establish 
he was primarily engaged in the performance of qualifying executive-level duties as of the date the 
petition was filed. The Petitioner indicated that the Beneficiary would devote at least 30% of his time 
to non-qualifying operational-level duties such as "managing the design of optimal architectural 
solutions," "analyzing the specific platform and technology stack used by the client," and 
"performance tuning from time to time." However, there is uncertainty as to the Petitioner's assertion 
that the Beneficiary was otherwise focused on performing executive-level goal and policy making 
tasks with the remaining 60% of his time. For example, some of the duties included in the 
"managerial" duties section appeared very similar to his asserted "non-managerial" responsibilities, 
including him conducting "dashboard/portfolio reviews with important stakeholders (for customer 
satisfaction)," completing "status updates" and "milestone tracking," creating "functional proof of 
concepts, sales collateral and proposals to be presented in sales calls to clients," and "translating 
proposals to statement of work to project initiation." Several of these duties indicate the Beneficiary's 
direct provision of services to clients, rather than his setting of broad goals and policies from an 
elevated position within the organization. 
In addition, it is notable that when the Petitioner provided additional explanation of the Beneficiary's 
responsibilities in support letters, many of these tasks also seemed to involve the direct provision of 
services to clients. For instance, the Petitioner stated that the Beneficiary was tasked with 
"performing ... services with varied clients through research, proof of concepts, and training" including 
"presales, sales, engineering, delivery, resources management, and resource optimization in projects 
related to data analytics." Likewise, the Petitioner emphasized that the Beneficiary was responsible 
for "executing the various programs using the Photon 4.0 engineering process" and ensuring "that the 
best practice checklists have been constituted for each phase [ and] have been followed." The 
Petitioner further noted that the Beneficiary was responsible for understanding "customer innovation 
requirements, storyboard proposals, and conduct[ing] workshops to evangelize trends." Similarly, it 
stated that the Beneficiary organized "Technical Webinars," tracked "key milestones" and 
"productivity," defined "customer satisfaction goals and measurable metrics," provided "active 
customer intake mechanism to improve product[s]," and issued "escalations ... through root cause 
analysis and resolution." In sum, many of these duties suggest the Beneficiary's direct engagement in 
the provision of services to clients on a day-to-day basis rather than his employment at a higher 
organizational level and a primary focus on setting broad goals and policies. 
Whether the Beneficiary is an executive employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See sections 10l(a)(44)(B) of the Act. 
Here, the Petitioner does not credibly articulate and document what proportion of the Beneficiary's 
duties would be executive functions and what proportion would be non-qualifying. The Petitioner 
lists the Beneficiary's duties as including both executive tasks and administrative or operational tasks 
but does not convincingly quantify the time he spends on these different duties. For this reason, we 
cannot determine whether the Beneficiary is primarily performing the duties of an executive. See 
IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
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In contrast, the Petitioner submitted few credible details and little supporting documentation to 
substantiate the Beneficiary's performance of executive-level duties. For example, the Petitioner did 
not sufficiently detail or document the "goals for periodic releases" the Beneficiary set, the hiring, 
training, or performance management policies he implemented, or other broad-based goals and 
policies he established. The Petitioner also indicated in the Beneficiary's duty description, and 
elsewhere within its support letters, that he was tasked with personnel responsibilities. However, there 
is little explanation of the specific personnel decisions the Beneficiary made or personnel policies he 
put in place and it submitted no supporting documentation to support his oversight of an organization 
it claims involves his "direct and indirect managerial ownership of over 50 employees." In addition, 
the Petitioner explained that the Beneficiary was responsible for submitting "goal alignment and 
adherence plan presentations to the executive board of the organization and [a] set of strategic 
decisions." This responsibility appears to be a quintessential executive-level task; however, the 
Petitioner provided no credible detail to substantiate the Beneficiary's performance of this 
responsibility, such as the strategic decisions or policies he presented to the board, nor did it submit 
supporting documentation to corroborate his performance of this function. 
Although we did not expect the Petitioner to articulate and document every executive-level task 
performed by the Beneficiary, it is reasonable to expect that it would provide sufficient detail and 
documentation to sufficiently corroborate his performance of qualifying duties, particularly since it 
asserts he acted in this role in the United States as an L- lA nonimmigrant for approximately two years 
prior to the date this petition was filed. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive in nature, otherwise meeting the definitions would simply 
be a matter of reiterating 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). 
Even though the Beneficiary holds a valuable position within the organization, the fact that he will 
manage or direct a portion of the business does not necessarily establish eligibility for classification 
as a multinational executive within the meaning of section 101 (a)( 44 )(B) of the Act. The Beneficiary 
may exercise discretion over some of the Petitioner's day-to-day operations and possess some requisite 
level of authority with respect to discretionary decision-making; however, the position description 
alone is insufficient to establish that his actual duties would be primarily executive in nature. 
B. Staffing and Executive Capacity 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, we take into account the reasonable needs of the organization, in light of its overall purpose 
and stage of development. See section 101 (a)( 44 )( C) of the Act. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of an organization or major component or function thereof Section 10l(a)(44)(B) 
of the Act. 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 its broad 
goals and policies, 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 
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organization, major 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. 
The Petitioner submitted an organizational chart reflecting that the Beneficiary supervised five direct 
subordinates, including two 'Technical Managers- Database Practice, a "Technical Manager- Big 
Data Analytics," another technical manager, and a senior systems engineer. The Petitioner also stated 
that the Beneficiary "will have direct and indirect managerial ownership of over 50 employees across 
wide skillsets." 
However, the Petitioner has provided little supporting evidence to demonstrate the Beneficiary's 
direction o±: and personnel authority over, his subordinates and no supporting evidence reflecting his 
executive-level management over a greater organization including more than 50 employees. The 
Petitioner only provided pay stubs and diplomas specific to the Beneficiary's claimed direct 
subordinates, but otherwise submitted no supporting documentation to demonstrate his claimed 
personnel authority or his delegation of goals and policies over an organizational including over 50 
individuals. Likewise, the Petitioner did not clarify how the Beneficiary oversees an organization 
including over 50 employees and the provided organizational structure only reflects that he is a first 
line manager. For instance, as we previously discussed, the Petitioner emphasized that the Beneficiary 
was responsible for presenting goals and strategies quarterly to the executive leadership of the 
organization, but there is no supporting evidence to establish this assertion nor documentation 
reflecting his involvement in any other executive-level initiatives. 
When considering the provided organizational chart in light of the Beneficiary's stated duties, 
including several non-qualifying operational tasks, it appears more likely than not that he oversees a 
relatively small team of professionals formulating and tracking solutions for clients rather than 
primarily setting goals and policies from an elevated position within the organization. The Petitioner 
must resolve this inconsistencies and ambiguities 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). 
For the foregoing reasons, the Petitioner has not demonstrated that the Beneficiary would act in an 
executive capacity in the United States. 
ORDER: The appeal is dismissed. 
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