dismissed EB-1C Case: Software Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF U-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 technology company, seeks to permanently employ the Beneficiary as a 
"Product Operations Specialist" 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 capacity. 
On appeal , the Petitioner contends that the Beneficiary 's foreign and proposed positions involve 
managing an essential function. 
Upon de nova review , we fmd that the Petitioner has not established that the Beneficiary's U.S. 
employment will be in a managerial capacity. Therefore, we will dismiss the appeal. Because of the 
dispositive effect of this finding , we will reserve the remaining issue. 
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 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. § 204.5G)(3). 
Matter of U-T-, Inc. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Petitioner claims that the Beneficiary would assume the role of a function manager. As the 
Petitioner does not claim that the Beneficiary would be employed in an executive capacity, we will 
not discuss whether the Beneficiary's proposed position fits that statutory definition. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are required to 
primarily supervise and control the work of other supervisory, professional, or managerial employees. 
Section 10l(a)(44)(A)(ii) of the Act. 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. § 214.2(l)(l)(ii)(B)(3). 
On the other hand, 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 will exercise discretion over the function's day-to-day 
operations." Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
A. Procedural History 
In a supporting cover letter, the Petitioner stated that the Beneficiary will manage the product 
operations function "as it relates to [the Petitioner]'s engineering teams that are focused on building 
an onboarding system for I I customers globally." The Petitioner explained that the 
Beneficiary will collaborate with "a wide range of internal teams" and lead a U.S. engineering team 
as they develop and update a Donboarding system." The Petitioner stated that the Beneficiary also 
"sets the strategic direction for the D onboarding system" and trains product teams "to understand 
operational problems" in order to ensure that they "effectively deliver new D features and 
technology" to international markets. It also stated that the Beneficiary "controls the work of' nine 
subordinates, who include data scientists, product marketing managers, and software engineers, and is 
responsible for personnel actions, such as hiring, firing, and promoting these employees. 
The Petitioner also provided an organizational chart depicting the Beneficiary as subordinate to two 
levels of management - the head of the product operations department and a product operations 
manager. The chart indicates that the Beneficiary oversees or interacts with regional and local 
operations leads, "local product champions," and "operations strike teams," which were listed under 
the "Global Regions" heading on the right side of the chart. The left side of the chart shows a San 
Francisco-based staff comprised of 4000 employees in the operations team, 650 in the product 
engineering team, 12 in the program team, 75 in the strategy and planning team, 90 in the process, 
resource, and optimization team, and 100 in the data science team. As the Petitioner previously stated 
2 
Matter of U-T-, Inc. 
that the Beneficiary's nine subordinates are software engineers and employees in the data science and 
product marketing teams, this chart, which depicts over 4800 I ~hased employees spread 
out among six teams, does not accurately reflect the Beneficiary's position within the organization. 
In a request for evidence (RFE), the Director correctly observed that the organizational chart did not 
show the relationship between the Beneficiary and his subordinates. The Director also noted that the 
Petitioner did not provide adequate job descriptions or minimum educational requirements and job 
qualifications for the Beneficiary's subordinates or establish that the Beneficiary manages, rather than 
performs, the organization's daily operational tasks. The Petitioner was instructed to provide evidence 
addressing these deficiencies and to include a detailed job duty breakdown indicating the percentage 
of time to be allocated to each assigned job duty. 
In response, the Petitioner stated that although the Beneficiary was initially hired to fill the position of 
product operations specialist, he has since been promoted to the position of product operations 
manager and will be response for a function related tol I a division within the U.S. entity. 
The Petitioner did not explain the difference between the two positions and provided an organizational 
chart and job duty breakdown that correspond to the new position, rather than the product operations 
specialist position that was offered to the Beneficiary when this petition was filed. 
In the denial decision, Director did not acknowledge that the Beneficiary moved to a different position 
after this petition was filed and thus would not assume the position that was offered at the time of 
filing. Notwithstanding this oversight in the material change in the proposed employment, the Director 
determined that the petition did not merit approval because the Petitioner did not adequately describe 
the Beneficiary's job duties or establish that the Beneficiary meets the criteria of either a personnel 
manager or a function manager. 
On appeal, the Petitioner refers to the Beneficiary's "offered position of Product Operations Manager" 
and asserts that the Beneficiary performs "key functional management responsibilities" and 
"coordinat[ es] the flow of work of 29 professional-level employees" with respect tol I The 
Petitioner did not provide additional information regarding the position that was offered to the 
Beneficiary at the time of filing or explain the difference in job duties between that position and the 
Beneficiary's new position. 
B. Analysis 
As a threshold matter, we note again that the RFE response does not include additional information 
about the Beneficiary's proposed position as product operations specialist and instead focuses on the 
position of product operations manager, which the Beneficiary is currently claimed to hold. As such, 
the Petitioner did not effectively address the issues highlighted in the RFE, which instructed the 
Petitioner to provide additional information about the position that was specifically offered in the 
petition. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. § 103.2(b)(l4). Furthermore, it is critical to note that 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 
3 
Matter of U-T-, Inc. 
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 8 C .F.R. § 103 .2(b )( 1 ). 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. 
As noted above, the information the Petitioner provided in its response to the RFE did not clarify or 
provide more specificity to the job duties that pertain to the position that was initially offered at the 
time of filing. Instead, the Petitioner provided a job description for a new position that is claimed to 
have been offered some time after the petition was filed. As the Beneficiary's new position of product 
operations manager was not the position listed in the petition at the time of filing, it is not relevant for 
the purpose of determining eligibility in this matter and any evidence that pertains to the new position 
will not be considered in this decision, which must be based exclusively on evidence pertaining to the 
position of product operations specialist. 
We find, however, that the record as presently constituted does not establish that the position of 
product operations specialist meets the criteria of a function manager. Although the Petitioner 
originally stated that the Beneficiary would manage the product operations function, it did not 
sufficiently describe with specificity the activity to be managed. See Matter of G- Inc., Adopted 
Decision 2017-05. In discussing this function, the Petitioner broadly stated that the Beneficiary would 
"control the work" of nine employees and guide the Petitioner's product engineering teams "on how 
to improve [its] onboarding system for the D program." While the Petitioner emphasized the 
Beneficiary's "advanced managerial expertise in workinr errs-functionally across teams to develop 
and implement expansion strategies" with respect to the program, these activities convey only a 
general sense of the Beneficiary's job responsibilities, but do not represent a "clearly defined activity" 
within the scope of this specific software technology organization and its IT offerings. Id. As the 
Petitioner did not adequately define the function the Beneficiary is claimed to manage, we would not 
need to address the other element of this criterion, which asks the Petitioner to establish that the 
function to be managed is essential, or core to the organization. 
The Petitioner also has not established that the Beneficiary functions at a senior level within the 
organization or with respect to the function. As noted earlier, the Petitioner provided an organizational 
chart showing two levels of management - the head of product operations followed by a product 
operations manager- above the Beneficiary. Although it is possible that the BeneficiarT may be senior 
with respect to employees who work within the six teams that are located at the _ I 
headquarters, it is unclear precisely who those subordinate employees actually are, as it was originally 
claimed that the Beneficiary has nine subordinates and the organizational chart that the Petitioner 
provided indicates that there are over 4800 employees spread out among the teams where the 
subordinates' positions are likely to be placed. As the Petitioner has not provided a more expansive 
organizational chart of the broader organization, we cannot determine the Beneficiary's level of 
seniority within the organization as a whole. Id. at 6. 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 has not provided evidence demonstrating that the Beneficiary's position is at a 
senior level either within the organization or with respect to the function he was initially assigned to 
manage. 
4 
Matter of U-T-, Inc. 
Further, although the Beneficiary's original job description included elements that pertain to a 
personnel manager, the Petitioner did not provide evidence to support the claim that the Beneficiary 
would oversee the work of professional subordinates. As correctly noted in the RFE and farther 
discussed above, the organizational chart that the Petitioner provided in support of the petition does 
not clarify the relationship between the Beneficiary and his claimed subordinates. The only clear 
reporting structure appears to exist between the Beneficiary and his direct superior at the time, the 
product operations manager. 
The record also lacks evidence pertaining to the specific education and job requirements of the 
Beneficiary's claimed subordinates. In evaluating whether a beneficiary manages professional 
employees, we must determine 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 10l(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, 
regardless of whatever educational levels the Beneficiary's claimed subordinates may attained, we 
must focus on the level of education actually required by their respective positions. The possession 
of a bachelor's degree by a subordinate employee does not automatically lead to the conclusion that 
the subordinate is employed in a professional capacity. As the Petitioner did not provide sufficient 
evidence about the job requirements of the Beneficiary's claimed subordinates, we are precluded from 
making a determination about the Petitioner's claim that the Beneficiary would oversee the work of 
subordinates who are professional employees. See Chawathe, 25 I&N Dec. at 376 
Moreover, even if the Petitioner were to have overcome the above noted deficiencies and establish 
eligibility based on evidence pertaining to the position of product operations specialist, this petition 
would not warrant approval because the Petitioner is no longer seeking to employ the Beneficiary in 
the originally offered position as a result of his claimed promotion to a new position which is not the 
subject of this adjudication. 
In light of the deficiencies described above, the Petitioner has not established that the Beneficiary 
would 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 U-T-, Inc., ID# 5194291 (AAO Sept. 6, 2019) 
5