remanded EB-1C Case: Management Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 26353693 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 21, 2023 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner, a management consulting firm, seeks to permanently employ the Beneficiary as a 
management consultant 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. 
§ l 153(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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary has been employed abroad, and will be employed in the United States, 
in a managerial or executive capacity. The matter is now before us on appeal. 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 nova. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 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 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. The 
Petitioner consistently refers to the Beneficiary's past and intended employment as managerial, and 
therefore we need not address the requirements for an executive 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. § 110l(a)(44)(A). 
If a petitioner establishes that the offered position meets all four elements set forth in the statutory 
definition, the petitioner must then prove that the beneficiary will be primarily engaged in managerial 
duties, as opposed to ordinary operational activities alongside the petitioner's other employees. See 
Family Inc. v. USCJS, 469 F.3d 1313, 1316 (9th Cir. 2006). In detennining whether the beneficiary's 
duties will be primarily managerial, we consider the description of the job duties, the company's 
organizational 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. 
The Director concluded that the Petitioner did not establish that the Beneficiary has been employed 
abroad, and would be employed in the United States, in a managerial or executive capacity. The 
Petitioner has consistently referred to the U.S. and foreign positions as managerial. 
When denying a petition, the Director must explain in writing the specific reasons for denial. 8 C.F.R. 
§ 103.3(a)(l)(i). We agree with the Director that there are deficiencies in the record. Nevertheless, 
we conclude that the denial notice did not provide enough information to enable the Petitioner to file 
a meaningful appeal. Most of the Director's decision consists of language quoted from job 
descriptions submitted by the Petitioner. When setting forth the grounds for denial, the Director stated 
several conclusions without adequately explaining the underlying reasoning, which might have 
afforded the Petitioner an opportunity to address the issues on appeal. 
The Beneficiary previously worked as a management consultant for the Petitioner's affiliate in 
Belgium. She now works for the Petitioner in the United States, still as a management consultant, in 
L-lA nonimmigrant status. The Petitioner's initial filing included similar nine-part job descriptions 
for the Beneficiary's foreign and U.S. positions. In response to a request for evidence (RFE), the 
Petitioner submitted longer descriptions. 
In the denial notice, the Director stated that "the duties submitted for the [U.S. position] merely 
repeated the same duties as described from the employment abroad." But the similarity is to be 
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expected, because the Beneficiary held the same title abroad and in the United States. The Director 
also stated that the Petitioner submitted inconsistent job descriptions for both the foreign and the U.S. 
positions. We agree with the Petitioner's argument on appeal that the longer descriptions submitted 
in response to the RFE amount to expansions, rather than material revisions, to the job descriptions. 
The Director also stated, without elaboration, that the submitted job descriptions "lack necessary levels 
of detail." The Director cited Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, (E.D.N.Y. 1989), 
aff'd. 905 F.2d 41 (2d. Cir. 1990): "Specifics are an important indication of whether the beneficiary's 
duties are primarily executive in nature. Otherwise, meeting the definition would simply be a matter 
of reiterating the regulations" Id. at 1108. But, as the Petitioner observes on appeal, the job 
descriptions did not simply reiterate the regulations; the job descriptions submitted in response to the 
RFE included "a full additional paragraph for each job duty." We agree with the Petitioner that the 
Director did not adequately explain how the expanded job descriptions are deficient. 
The Director's discussion of the Beneficiary's position abroad includes a lengthy discussion of the 
requirements for an executive capacity. This language does not apply to the case at hand, because the 
Petitioner has consistently described the Beneficiary's past employment as managerial. 
For the reasons discussed above, we will withdraw the Director's decision. Nevertheless, there are 
deficiencies in the record which, if not adequately addressed, would warrant denial of the petition. 
The term "managerial capacity," as defined in the statute and regulations, encompasses two types of 
managerial position. The statutory definition of "managerial capacity" includes both "personnel 
managers" and "function managers." A personnel manager supervises and controls the work of other 
supervisory, professional, or managerial employees, and possesses authority to hire and fire or 
recommend those and other personnel actions (such as promotion and leave authorization) for 
employees directly supervised. The term "function manager" applies generally when a beneficiary 
does not supervise or control the work of a subordinate staff but instead is primarily responsible for 
managing an "essential function" within the organization. See generally 6 USCIS Policy Manual 
F.4(C), https://www.uscis.gov/policy-manual. 
The Petitioner initially claimed that the Beneficiary's "position entailed both functional managerial 
responsibilities ... as well as people management." In more recent filings, the Petitioner has indicated 
that the Beneficiary supervises professionals and managers, indicating personnel management. The 
Petitioner does not appear to have met its burden of proofregarding this claim, but has not yet had an 
adequate opportunity to address these issues. 
A personnel manager must have the authority to hire and fire or recommend those and other personnel 
actions. Section 101(a)(44)(A)(iii); 8 C.F.R. § 204.5(i)(2). The Director concluded that the Petitioner 
had not submitted "any actual evidence that the beneficiary actually had control of these subordinates ... 
or that she possessed the authority to 'hire/fire' or recommend these actions, as well as other personnel 
actions." The only evidence specifically required by the regulations is a statement from the petitioning 
employer. See 8 C.F.R. § 204.5(i)(3)(i). The record contains such a statement, indicating that, both 
abroad and in the United States, the Petitioner has "had authority to make recommendations for hiring, 
firing, and training of I professionals." If the Director has reason to question the credibility or 
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reliability of the Petitioner's statement, and request additional documentation in support on that basis, 
then the Director must explain in enough detail that the Petitioner can meaningfully respond. 
In this respect, a potentially significant issue is the Petitioner's acknowledgment that the Beneficiary 
has no fixed subordinates, but oversees teams that vary from project to project. The extent of the 
Beneficiary's influence over personnel decisions for individuals only temporarily under her authority 
bears further inqui1y. Also, the Petitioner has not explained the nature of the Beneficiary's authority 
over decisions to hire individuals who, by definition, do not yet work for the company and are not yet 
part of any team that the Petitioner oversees. 
A manager must manage the organization, or a department, subdivision, function, or component of the 
organization. Section 101(a)(44)(B)(i) of the Act; 8 C.F.R. § 204.5(i)(2). The Director should give 
the Petitioner the opportunity to clarify whether it considers ad hoc project teams to be departments, 
subdivisions, functions, or components of the organization, to explain how that would meet the 
regulatory definition, and to submit evidence to support its claims. 
Partial organizational charts in the record, taken together, show the following hierarchy: 
• Senior Partner 
o Associate Partner 
■ Engagement Manager 
• Management Consultant [the Beneficiary's title] 
o Associate 
o Senior Business Analyst 
o Junior Specialist 
Different projects involve different staff. The Petitioner has asserted that "[a]ssociates ... are 
manager-level employees," although the Petitioner does not elaborate. The Petitioner has also stated 
that the Beneficiary's other subordinates are professionals. The record does not explain the roles of 
the senior partners, associate partners, and engagement managers with respect to management 
consulting projects, and the Petitioner does not appear to have fully explained how the Beneficiary's 
subordinates relieve her from performing the operational tasks involved in consulting projects. Also, 
the Petitioner is part of an international organization that claims over 9,000 employees in the United 
States and over 32,000 worldwide. The fragmentary organizational chart does not show the 
beneficiary's place in the larger organization. The Director should afford the Petitioner an opportunity 
to submit more evidence in this regard. By showing only the levels immediately above and below the 
management consultant position, the Petitioner has not adequately shown how management 
consultants like the Beneficiaty fit into the overall company structure. 
The Petitioner must adequately address the above issues, but the Director's decision did not give the 
Petitioner an adequate opportunity to do so. We will therefore remand the matter. 
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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