remanded EB-1C Case: Operations Management

U.S. Citizenship 
and Immigration 
Services 
In Re : 11810259 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 21, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner seeks to permanently employ the Beneficiary as its operations manager 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 Nebraska Service Center denied the petition , concluding that the record did not 
establish, as required, that the Petitioner had the ability to pay the Beneficiary's proffered wage and 
that she would be employed in the United States in a managerial capacity. 1 
Upon de novo review, we conclude that the Petitioner provided sufficient evidence to establish that it 
had the ability to pay the Beneficiary's proffered wage when the petition was filed. Accordingly, we 
withdraw the Director's decision on the ability to pay issue. The Director, however, did not provide 
an accurate and comprehensive analysis of the evidence on the issue of managerial capacity for either 
the proposed U.S. employment or the foreign employment. The lack of clarity and paucity of accurate 
analysis did not afford the Petitioner a meaningful opportunity to challenge the adverse findings . 
Therefore, we will also withdraw the Director's decision on this issue and remand the matter for the 
entry of a new decision consistent with the following analysis. 
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 corning to work in the United States for the same 
1 As the Petitioner noted on appeal, it is not clear if the Director also concluded that the Petitioner failed to establish that 
the Beneficiary was employed in a managerial capacity for the foreign employer. 
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. ABILITY TO PAY 
A petitioner must establish its continuing ability to pay the proffered wage from the priority date until 
the beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). In determining a 
petitioner's ability to pay, we first examine whether it paid a beneficiary the foll proffered wage each 
year from a petition's priority date. If a petitioner did not pay a beneficiary the foll proffered wage, 
we next examine whether it had sufficient annual amounts of net income or net current assets to pay 
the difference between the proffered wage and the wages paid, if any. If a petitioner's net income or 
net current assets are insufficient, we may also consider other evidence of its ability to pay the 
proffered wage. 2 In this case, the priority date is May 24, 2019, the date the immigrant petition was 
filed. See 8 C.F.R. § 204.5(d). The annual proffered wage is $75,000. 
On appeal, the Petitioner submits the Beneficiary's Internal Revenue Service Form W-2, Wage and 
Tax Statement 2019. 3 It shows that the Petitioner paid the Beneficiary the proffered annual wage of 
$75,000 in 2019. The record also includes the Petitioner's 2019 federal tax return. As such, the 
Petitioner has demonstrated that more likely than not it had the ability to pay the proffered wage at the 
time the priority date was established. 4 
III. BASIS FOR REMAND 
As noted earlier, we find that the Director's decision did not adequately explain the deficiencies in the 
evidence. See 8 C.F.R. § 103.3(a)(l)(i); see also Matter of M-P-, 20 I&N Dec. 786 (BIA 1994) 
(finding that a decision must folly explain the reasons for denying a motion to allow the respondent a 
meaningful opportunity to challenge the determination on appeal). 
Notwithstanding the lack of analysis, the record is currently insufficient to establish that the 
Beneficiary would be employed in a managerial capacity for the U.S. entity, as claimed. 5 To be 
eligible for this immigrant visa classification as a manager, a petitioner must show that the beneficiary 
will perform the high-level responsibilities set forth in the statutory definition at section 
101(a)(44)(A)(i)-(iv) of the Act. Further, if the petitioner establishes that the offered position meets 
all elements set forth in the statutory definition, a petitioner must 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. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). 
2 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Donuts, LLC v. Napolitano. 558 F.3d 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-946 (S.D. Cal. 2015); Rizvi v. Dep 't of 
Homeland Sec .• 37 F. Supp. 3d 870. 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x. 292, 294-295 (5th Cir. 2015). 
3 We note that the Petitioner's response to the Director's request for evidence is dated December 23, 2019. Thus, the 
Beneficiary's 2019 Form W-2 would not have been available when the response was provided. 
4 On remand. the Director may further explore whether the Petitioner continues to have the ability to pay the proffered 
wage subsequent to the 2019 year. 
5 The Petitioner does not claim. and the record does not show, that the Beneficiary will perform work primarily in an 
executive capacity. 
2 
Here the Director focused on the Petitioner's failure to demonstrate that the Beneficiary supervised a 
professional employee, and noted that the Beneficiary's subordinate, the sales manager, did not have 
a bachelor's degree. However, whether the Beneficiary's subordinate employee(s) holds a bachelor's 
degree, is not the primary issue. In evaluating whether a beneficiary manages professional employees, 
we must evaluate 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, the focus of this 
determination is on the level of education required by the position, rather than the degree held by the 
subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity. Here, 
the Petitioner does not sufficiently describe the U.S. sales manager's duties to conclude that the duties 
require a bachelor's degree in order to perform them. 6 
The record also includes inconsistent information regarding the Beneficiary's claimed supervision of 
the sales manager, an assistant sales manager, and two administrative 7 employees. The descriptions 
of duties for the Beneficiary and the sales manager and the Petitioner's organizational chart do not 
correspond. The duty descriptions for the Beneficiary's position and the sales manager's position, as 
the claimed duties relate to supervision of others, are not sufficiently distinct to ascertain their actual 
role within the organization. That is, the descriptions are ambiguous as to which position, the 
Beneficiary's position or the sales manager's position, will supervise the assistant sales manager and 
the administrative employee. The record also does not clearly establish that the Beneficiary's 
subordinate( s) supervise other employees or that they manage a department or function, such that they 
can be classified as managers or supervisors. Thus, the record does not include sufficient evidence to 
demonstrate that the Beneficiary's subordinate employee(s) is supervisory, professional, or 
managerial, as required by section 10l(a)(44)(A)(ii) of the Act. 
We also note that many of the Beneficiary's duties do not relate to supervision but rather appear to 
involve performing operational and administrative tasks, such as analyzing finances and preparing 
projections, preparing and implementing sales plans, and developing and overseeing marketing 
campaigns. The record is insufficient to establish that the Beneficiary will be primarily engaged in 
managerial duties, as required, rather than the operational and administrative tasks necessary to 
continue the Petitioner's operations. The Petitioner does not include sufficient detail or explanation 
of the Beneficiary's activities in the course of her daily routine. The actual duties themselves will 
reveal the true nature of the employment. 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). In this instance the record does not demonstrate 
that the Beneficiary will primarily manage the organization, or a department, subdivision, function, or 
component of the organization, consistent with section 10l(a)(44)(A)(i) of the Act. 
6 We note that the Department of Labor's Occupational Outlook Handbook (Handbook), cited by the Petitioner to support 
a claim that a sales manager position categorically requires a bachelor's degree is not persuasive. The Handbook reports 
that some sales managers have only a high school diploma. As noted, the record does not include sufficient information 
to conclude that the generally described duties of the Petitioner's sales manager position requires a bachelor's degree. 
7 The record does not include evidence that both administrative employees were employed when the petition was filed in 
May 2019. 
3 
IV. CONCLUSION 
Although the Petitioner did not submit sufficient evidence to meet its burden of establishing that the 
Beneficiary will be employed in a managerial capacity for the Petitioner, the Director's decision 
contained inaccurate findings and did not adequately analyze the facts and apply the law. Again, when 
denying a petition, the Director has an affirmative duty to explain the specific reasons for the denial; 
this duty includes informing a petitioner why the evidence did not satisfy its burden of proof pursuant 
to section 291 of the Act. 8 C.F.R. § 103.3(a)(l)(i). As the Director did not satisfy this condition, we 
will withdraw the Director's decision and remand the matter for entry of a new decision. The Director 
should request any additional evidence deemed warranted and allow the Petitioner to submit such 
evidence within a reasonable period of time. The Director may also notify the Petitioner of additional, 
potential grounds of denial if supported by the record. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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