remanded EB-1C Case: Hardware And Software Services

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 10, 2024 In Re: 33358590 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a provider of hardware and software services, seeks to permanently employ the 
Beneficiary as its director of client services 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 a managerial or executive 
capacity . 
The Director of the Nebraska Service Center denied the petition, concluding the record did not 
establish that the Petitioner would employ the Beneficiary in a managerial capacity in the United 
States. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
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 1-140, Immigrant Petition for Alien Workers, 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 ( or for at least one year in the three years preceding their entry to the United 
States as a nonimmigrant); the beneficiary is coming to work in the United States for the same employer 
or a subsidiary or affiliate of the foreign employer; and the prospective U.S. employer has been doing 
business for at least one year. See 8 C.F.R. § 204.5G)(3). 
TI. ANALYSIS 
The sole issue addressed by the Director is whether the Petitioner established it would employ the 
Beneficiary in the United States in a managerial capacity. 1 
"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; 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 l0l(a)(44)(A). 
Here, the Petitioner consistently claimed that it will employ the Beneficiary as a function manager. If 
a petitioner claims that a beneficiary will manage an essential function, as opposed to primarily 
managing subordinate personnel, it must clearly describe the duties to be performed in managing the 
essential function. In addition, the petitioner must demonstrate that "(l) 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 evaluating whether a beneficiary will be employed a managerial capacity, users reviews the totality 
of the evidence, including the required description of their job duties, the company's organizational 
structure, the duties of a beneficiary's subordinate employees (if any), the presence of other employees 
to relieve a beneficiary from performing operational duties, the nature of the business, and any other 
evidence contributing to understanding a beneficiary's actual duties and role in a business. In the case 
of a function manager, other factors considered may include a beneficiary's position within the 
organizational hierarchy, the depth of a petitioner's organizational structure, the scope of a beneficiary's 
authority and its impact on a petitioner's operations, the indirect supervision of employees within the 
scope of the function managed, and the value of the budgets, products, or services that a beneficiary 
manages. See Matter ofZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). 
When staffing levels are considered in determining whether an individual will act as a function 
manager, users must also consider relevant evidence in the record concerning the reasonable needs 
of the organization as a whole, including any related entities within the broader organization. See 
10l(a)(44)(e) of the Act; see also Matter ofZ-A-, Inc., Adopted Decision 2016-02. 
1 The Petitioner does not claim that it would employ the Beneficiary in an executive capacity as that te1m is defined at 
section 10l(a)(44)(B) of the Act, 8 U.S.C. § l 10l(a)(44)(B). 
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A. Withdrawal of Director's Decision 
On appeal, the Petitioner contends that the Director's decision does not reflect consideration of the 
relevant factors outlined in Matter ofG- and Matter ofZ-A- and instead was based almost exclusively 
on the fact that the Beneficiary was the Petitioner's sole employee at the time of filing. 
The Petitioner's assertions are persuasive. The record reflects that the Director did not sufficiently 
address the Petitioner's evidence and explain the reasons for denial of the petition based on the relevant 
adjudicative factors set forth in the statute and the AAO' s adopted decisions addressing adjudication 
of petitions involving function managers under section 10l(a)(44)(A) of the Act. 
While the Director correctly noted the record indicates the Beneficiary was the Petitioner's sole 
employee at the time of filing, the decision does not include an analysis of the Beneficiary's submitted 
job description, the Petitioner's descriptions of its business and the client services function, the group's 
global organizational chart, job descriptions and proof of employment for other employees within the 
multinational organization who work offshore on U.S. contracts and projects, and internal email 
communications intended to illustrate how the Beneficiary relies on overseas staff in carrying out her 
responsibilities in the United States. See generally 2 USCIS Policy Manual L.8(C), 
https://www.uscis.gov/policy-manual (identifying the types of evidence USCIS should consider when 
a petitioner claims that foreign staff will support a managerial or executive position in the United 
States). 
Although the record may not ultimately support a conclusion that the Beneficiary is eligible for 
classification as a multinational manager, such determination cannot be based entirely on the 
Petitioner's U.S. staffing levels, particularly given the Petitioner's consistent claim that other staff 
within the multinational organization directly support its day-to-day functions. 
An officer must fully explain the specific reasons for denying a visa petition. See 8 C.F.R. 
§ 103.3(a)(l)(i). Absent a specific explanation for denial and adequate notice of why the submitted 
evidence was insufficient to establish eligibility, a petitioner does not have a fair opportunity to contest 
a denial through the motion or appellate process. See, e.g. Matter of M-P-, 20 I&N Dec. 786 (BIA 
1994) (finding that a decision must fully explain the reasons for denying a motion to allow the 
respondent a meaningful opportunity to challenge the determination on appeal). Here, the Director's 
decision did not include a discussion of most of the evidence of record and therefore did not explain 
why that evidence was insufficient to meet the Petitioner's burden to demonstrate that the Beneficiary 
would be employed in a managerial capacity. 
Accordingly, we will withdraw the Director's decision and remand the matter for further consideration 
and entry of a new decision. On remand, the Director is instructed to re-evaluate the evidence relating 
to the Beneficiary's U.S. employment, as well as the Petitioner's claims on appeal. 
While the Petitioner has consistently indicated that the Beneficiary will continue to rely on the 
contributions of overseas-based staff who assist with the day-to-day duties of the U.S. company, it has 
also consistently stated that it would be recruiting and hiring additional local U.S. staff on a 
predetermined timeline. For example, at the time of filing in March 2022, the Petitioner indicated it 
was "committed to hire 5 local talents" in 2022. In response to the Director's request for evidence, 
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the Petitioner indicated it would hire eight local staff in "year 3" (including the five staff it originally 
intended to hire in 2022), and that it would be temporarily transferring three staff from overseas to the 
United States. The Petitioner also stated in its initial letter of support dated March 11, 2022, that it 
had recently hired a Vice President, Strategy and would be hiring a "U.S. Sales team" in 2022, but 
these positions do not appear on any of the submitted organizational charts. Despite its stated 
commitment to grow the U.S. staff, the Petitioner did not provide evidence that it had hired any 
additional staff as of the date it filed the appeal, nor is there evidence that the foreign staff has grown 
to meet the Petitioner's increasing personnel needs. As the matter is being remanded to the Director, 
they may request that the Petitioner address and clarify its prior claims regarding its projected hiring 
in the United States. 
B. Employment Abroad in a Managerial or Executive Capacity 
Although not addressed by the Director, the record as presently constituted does not contain sufficient 
evidence to demonstrate that the Beneficiary was employed abroad in a managerial or executive 
capacity for at least one year in the relevant three-year period. 
The record reflects that, as of the date of filing, the Beneficiary was in the United States and had been 
authorized by USCIS to work for the Petitioner in L-1 A nonimmigrant status since November 30, 
2020. If a beneficiary is already in the United States working for the petitioner or a related entity, the 
record must demonstrate that the beneficiary was employed by a qualifying entity abroad in a 
managerial or executive capacity for at least one year in the three years preceding their entry as a 
nonimmigrant. See 8 C.F.R. § 204.5(j)(3)(i)(B). The Petitioner states that the Beneficiary served as 
director of client services for its foreign affiliate from the company's establishment in August 2016 
until December 2018, when she temporarily relocated to the United States in H-4 nonimmigrant status. 
She was granted a change of status from H-4 to L-lA in November 2020, and the record reflects she 
was not employed by the Petitioner or foreign entity while in H-4 status. 
The Petitioner indicated in its initial support letter that the Beneficiary's main responsibilities during 
her tenure with the foreign entity included assessing potential customer acquisitions, developing new 
business, participating in industry-related events, and maintaining strong relationships with current 
and prospective clients. In a request for evidence, the Director advised the Petitioner that this 
description was too "broad and vague" and did not clarify the nature of the Beneficiary's day-to-day 
tasks. The Director asked that the Petitioner submit a detailed explanation of the specific tasks the 
Beneficiary performed and the amount of time she allocated to each duty; a list of employees and/or 
contractors in the Beneficiary's immediate division, department or team, including a summary of their 
job duties, educational level and salary; and copies of payroll summaries for the Beneficiary and her 
subordinates. 
Although the Petitioner responded to the RFE, its response did not provide the information requested 
by the Director with respect to the Beneficiary's foreign employment. The Petitioner reiterated that 
the Beneficiary worked for its affiliate in Singapore from August 2016 until December 2018 and stated 
that she "managed our client services function" and performed job duties and functions "aligned with" 
the statutory definition of managerial capacity. The Petitioner did not elaborate on the initial position 
description, nor did it identify and document the foreign affiliates' staffing and organizational structure 
during the Beneficiary's tenure with that company. 
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The record reflects that the Petitioner's affiliate was established in Singapore in August 2016 but does 
not document when the company hired staff or when it commenced operations. Although the 
Petitioner has consistently indicated that the four affiliated companies in its multinational group 
collaborate to carry out the group's activities, the Indian affiliate was not incorporated until November 
2017, while the U.S. and Malaysian companies were both established in 2018, with the U.S. company 
commencing operations in 2020. Therefore, the Petitioner cannot rely on the submitted global 
organizational charts from 2022 and 2023 and expect USCIS to assume that the organization had the 
same staffing and structure in place when the Beneficiary worked for the Singapore entity between 
2016 and 2018, at a much earlier stage of development. 
On remand, the Director should review the previously submitted evidence relating to the Beneficiary's 
foreign employment between 2016 and 2018 and may request additional evidence pertaining to her 
job duties, as well as the operating status of the Singapore entity and its affiliates during this time. 
The Petitioner should also be instructed to document the group's organizational structure and staffing 
during this period, identify the employees who reported directly or indirectly to the Beneficiary, and 
provide their job duties and dates of employment. 
If the Director ultimately denies the petition, the new decision must explain the specific reasons for 
denial in accordance with 8 C.F.R. § 103.3(a)(l). 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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