dismissed EB-1C Case: Telecommunications

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JULY 16, 2024 In Re: 31461865 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a telecommunications and financial services company, seeks to permanently employ 
the Beneficiary as its interconnection vice president and new business development executive 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 a managerial or executive capacity. 
The Petitioner filed the petition in February 2018. In December 2021, the Director of the Texas 
Service Center denied the petition, concluding that the record did not establish that: (1) the Beneficiary 
had been employed abroad in a managerial or executive capacity; (2) the Petitioner would employ the 
Beneficiary in the United States in a managerial or executive capacity; (3) the Petitioner had been 
doing business for at least a year prior to the filing date; and (4) both the Petitioner and its foreign 
affiliate were still doing business. The Director also made a finding of willful misrepresentation of a 
material fact. 
The Director appealed the decision, and we withdrew the Director's decision and remanded the matter 
to the Director for a new decision in October 2022. We also withdrew the finding of willful 
misrepresentation of a material fact. The Director denied the petition for a second time in November 
2023, citing the same four grounds for denial as before, without a finding of misrepresentation. The 
matter is now before us on appeal under 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
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. ANALYSIS 
The Director determined that the Petitioner did not establish that the Beneficiary has been employed 
abroad, and will be employed in the United States, in a managerial or executive capacity. 
Throughout this proceeding, the Petitioner has referred to the Beneficiary's roles in the United States 
and abroad as both managerial and executive. For instance, in the initial statement submitted at the 
time of filing, the Petitioner stated that "the Beneficiary's responsibilities will primarily consist of 
executive duties," but the Petitioner also stated that "the Beneficiary manages an essential function," 
which relates to managerial capacity rather than executive capacity. The statute and regulations 
provide different definitions for executive capacity and managerial capacity; the terms are not 
interchangeable. We need not address this distinction at length, because deficiencies in the record 
decide the outcome of the appeal regardless of whether we consider the Beneficiary's past and 
intended future positions in light of the requirements for either capacity. 
"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). 
"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. 
If a petitioner establishes that the offered position meets all four elements of a managerial capacity or 
an executive capacity set forth in the statutory definition, the petitioner must then prove that the 
beneficiary will be primarily engaged in managerial or 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 the beneficiary's duties will be primarily 
managerial or executive, we consider the description of the job duties, the company's organizational 
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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 the business. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, we must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. See section 101(a)(44)(C) of the Act. 
The Petitioner must meet all eligibility requirements at the time of filing the petition. See 8 C.F.R. 
§ 103.2(b)(l). In this proceeding, the Petitioner filed the petition in February 2018. Therefore, we 
will consider whether the position offered to the Beneficiary qualified as a primarily managerial 
capacity as of February 2018. The company's subsequent growth and development cannot 
retroactively establish eligibility at the time of filing. As we stated in our remand order, "the record 
may raise valid concerns regarding the ability of the U.S. company to support the proposed managerial 
or executive capacity as of the date of filing." 
In its initial filing, the Petitioner stated: 
[T]he Beneficiary will be responsible for making the following executive decisions, 
including: contracts and services performed by the company; financial strategies 
relating to policy matters which requires an analysis of possible alternatives such as 
opening a new branch; selection of the banking and financial institution which can best 
serve the necessities of the company, among others. 
The Petitioner initially submitted the following list of duties and the approximate time that the 
Beneficiary would devote to each: 
Duties/Roles Percentage 
of Time 
Work closely with her direct subordinate administration to ensure that 
all teams are working to develop, refine, and execute the business 
strategy focusing on driving [the Petitioner's] business development 
activities for North America and its incursion in Latin America. 
20% 
Conduct market analysis to opt1m1ze [the Petitioner's] 
telecommunication wholesale and retail products m the very 
competitive market, gammg new solid PTT interconnections . . . 
managmg expected annual revenues through aggressive pncmg 
strategies. 
15% 
Participate in negotiation processes with Local and International 
Telecom developing local business connections in order to support the 
operation and add value to the already on-going interconnections. 
15% 
Responsible for revenue and profit maximization from the collection 
of traffic from carriers worldwide, increasing presence as a preferred 
carrier. Annual Revenue Budget: $5M. 
25% 
Develop and implement a business plan and budget according to 
corporate goals. 
15% 
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Maintain staff by overseemg the selection and training of new I 0% 
em lo ees. 
The Petitioner also submitted 
organizational charts indicating that the Beneficiary would continue to 
have authority over staff in Venezuela, including six account managers and an individual with the title 
"revenue assurance." The U.S. organizational chart identified a Venezuela-based sales director who 
would oversee a "retail sales team to be built for telecom bundle services," but the chart for Venezuela 
does not show any sales director. Information on the chart indicates the retail sales team and four of 
the six planned account managers in Venezuela had not yet been hired. The Venezuelan chart also 
indicated that the person identified as "revenue assurance" was employed as a financial analyst under 
the authority of the foreign company's financial officer, not the Beneficiary. 
The chart showed U.S. positions for other account managers, a routing manager, and a retail sales 
team to be under the Beneficiary's authority, but it also indicated that, except for the routing manager, 
the positions were newly created and had not yet been filled. Therefore, the vacant positions were not 
able to relieve the Beneficiary from performing lower-level operational and administrative tasks at the 
time the Petitioner filed the petition. 
In an August 2023 notice of intent to deny (NOTD), the Director stated that the above information 
"showed the beneficiary would spend the majority of her time performing operational duties such as 
liaison, market research, business ventures, price point negotiation, sales, and contract negotiations." 
The Director also stated: "The evidence of record did not show that at the time of filing, the petitioner 
employed the necessary personnel to relieve the beneficiary from performing those operational 
duties." The Director noted that, when the Petitioner supplemented the record after the filing date, its 
subsequent submissions included "completely different description[s] of the beneficiary's duties." 
Organizational charts from later years show an expansion and reorganization of the Beneficiary's 
subordinate U.S. staff. As explained above, any changes to the Beneficiary's duties and the 
Petitioner's staffing after the petition's filing date cannot establish eligibility at the time of filing. 
In response, the Petitioner cited various organizational documents as evidence that the Beneficiary has 
been, and remains, a manager with the petitioning entity. The Petitioner repeats and expands upon 
these arguments on appeal, and we will address them in that context. 
The Director determined that the Petitioner had not adequately addressed the issues raised in the NOID 
that the Director had issued following our remand order, and denied the petition in November 2023. 
On appeal, the Petitioner states: 
Contrary to the [Director's] conclusion, evidence submitted [in support of the petition] 
(and overlooked in the decision) show[s] that ... the proposed job duties of [the 
Beneficiary's] prospective position with the U.S. petitioner ... are in a managerial/ 
executive capacity .... 
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As evidence of her duties, we include the Articles oflncorporation dated May 21, 2008 
where [ the Beneficiary] is listed as a Manager, including descriptions of the 
Beneficiary's proposed duties .... 
Since that time - May 21, 2008 - [the Beneficiary] has served as a Manager of [the] 
Petitioner. . . . On the [Petitioner's] Annual Reports, [the Beneficiary] is listed as 
Manager therefore showing her managerial capacity. See ... [the Petitioner's] Annual 
Reports for years 2008, 2009, 2010, 2011, 2012, 2019, 2020, 2021, 2022, 2023. 
The Petitioner is a limited liability company (LLC), with articles of organization rather than articles 
of incorporation. Those articles of organization list the Beneficiary as one of three managers, but the 
articles do not include a description of the duties of those managers. The Petitioner's November 2015 
operating agreement defines the term "manager," but does not describe the manager's duties except to 
indicate that managers may vote on certain matters and designate the company's registered office and 
registered agent. Schedule I of the operating agreement lists six managers of the petitioning U.S. 
entity, and the Beneficiary's name does not appear on that list. Furthermore, the Petitioner's annual 
reports between 2013 and 2018 do not name the Beneficiary among the company's managers, which 
conflicts with the Petitioner's assertion that the documents show the Beneficiary's continuous service 
as a manager "[s]ince ... May 21, 2008." 
The Beneficiary's title of "manager" on formational documents and annual reports is not evidence of 
employment in a qualifying managerial capacity. Instead, that designation appears to refer to the 
ability to vote on certain decisions by the LLC, rather than as an employee in a managerial capacity 
with authority over the company's day-to-day activities. We note that the Petitioner has not claimed 
or established that the Beneficiary was in the United States, and authorized to work in the United 
States, in May 2008 when the petitioning U.S. entity first designated her as a manager in its 
organizational documents. 
We agree with the Director that the Beneficiary's job description, as provided at the time of filing in 
2018, does not show duties that are primarily managerial or executive in nature. The Petitioner 
indicated that the Beneficiary would "[ c ]onduct market analysis," rather than oversee such analysis 
performed by subordinates. Other responsibilities are worded so vaguely that the Beneficiary's actual 
duties are difficult to discern, such as "ensure that all teams are working to develop, refine, and execute 
the business strategy," and "[r]esponsible for revenue and profit maximization." 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive 
or managerial 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). The title of a position is not enough to indicate the true nature of employment. 
The actual duties themselves will reveal the true nature of the employment. Id. 
The Petitioner's response to a 2018 request for evidence was also vague, listing responsibilities such 
as "[ o ]versee all of the commercial activities of the voice line of business" and "[ e ]xpand [the 
Petitioner's] regional footprint" without describing the specific tasks the Beneficiary would perform 
to fulfill those responsibilities. It also listed tasks such as "[ d]esigning and planning ... the products 
portfolio," which the Petitioner had not previously claimed, while removing the previous reference to 
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conducting market analysis. These changes appear to be revisions to the Petitioner's initial claims. A 
petitioner may not make material changes to a petition that has already been filed in an effort to make 
an apparently deficient petition conform to requirements. See Matter of lzummi, 22 I&N Dec. 169, 
175 (Comm'r 1998). 
The Petitioner initially asserted: "Thirty-nine (39) employees in Venezuela are available to support 
the day-to-day operational needs of the Petitioner by performing administrative and other duties 
related to business planning, technical support, research and development, sales, logistics, and 
distribution for the U.S. market." The Venezuelan company's organizational chart indicates that most 
of the employees performing the listed functions are not under the Beneficiary's authority, and 
therefore their activities do not establish her managerial or executive capacity. Matter of Z-A-, Inc., 
Adopted Decision 2016-02 (AAO Apr. 14, 2016) allows for consideration of foreign staff to the extent 
that the foreign entity's employees "support the Beneficiary's work." Here, most of the foreign staff 
would perform tasks that are not under the Beneficiary's authority. 
The Petitioner has not overcome the stated ground for denial discussed above. 
III. CONCLUSION 
We will dismiss the appeal, because the Petitioner has not established that the Beneficiary's intended 
position in the United States qualified as primarily managerial or executive at the time of filing. This 
conclusion is sufficient to determine the outcome of the appeal. Therefore, we reserve the remaining 
issues regarding the Beneficiary's prior employment abroad and whether the Petitioner and its foreign 
affiliate were, and still are, doing business. 1 
ORDER: The appeal is dismissed. 
1 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter ofL-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). 
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