remanded EB-1C Case: Optics And Photonics Technology

U.S. CitiZenship 
and Immigration 
Services 
MATTER OF E-O-, INC. 
) 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. I, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a global producer of optics, imaging, and photonics technology, seeks to permanently 
employ the Beneficiary as a product line 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). This classification allows a U~S. employer to 
pennanently 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 record did not 
establish, as required, that the Beneficiary was employed abroad in a managerial or executive 
. capacity. On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary was 
employed in a managerial capacity abroad. 
Upon de novo review, we will remand the matter to the Director for further consideration and entry 
of a new decision. 
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 Fonn 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. § 204.5U)(3). 
Matter of E-0-. Inc. 
II. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The Director determined that the Petitioner did not establish that its foreign subsidiary employed the 
Beneficiary in a managerial capacity for at least one year in the three years preceding his entry to the 
United States to work for a qualifying entity as a nonimmigrant. See 8 C.F.R. § 204.5(j)(3)(i)(B). 
The ·Petitioner is headquartered in the United States and has ot1ices throughout the world. The 
Beneficiary was employed by the Petitioner's subsidiary in Germany, where he served as product 
line manager from July 1, 2014, through August 30, 2015. In denying the petition, the Director 
focused on staffing and emphasized that the Beneficiary did not appear to supervise managers, 
professionals, or supervisors such that he was sufficiently relieved from involvement in a wide range 
of daily functions associated with running the business of the Petitioner's subsidiaries overseas. 
Upon review of the petition and evidence, it appears that the Director did not review the 
Beneficiary's eligibility as a function manager, and solely focused on whether ·he was employed 
abroad as a personnel manager. The statutory definition of "managerial capacity" allows for both 
"personnel managers" and "function managers." See section 101(a)(44)(A) of the Act. The te1m 
"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 section 101(a)(44)(A)(ii) of the Act. If, as in this case, a petitioner claims that a 
beneficiary managed an essential function, it must clearly describe the duties performed in managing 
the essential function. In addition, the petitioner must demonstrate that (I) the function is a clearly 
defined activity; (2) the function is essential (i.e., core to the organization); (3) the beneficiary 
primarily managed, as opposed to performed, the function; ( 4) the beneficiary acted at a senior level 
within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary 
exercised discretion over the function's day-to-day operations. Matter of G- Inc., Adopted Decision 
2017-05 (AAO Nov. 8, 2017). On remand, the Director shall consider the arguments and evidence 
submitted by the Petitioner and analyze whether the Beneficiary was employed abroad as a function 
manager. 
III. ABILITY TO PAY 
Although not discussed by the Director, we note that the record does not contain regulatory required 
evidence of the Petitioner's ability to pay the proffered wage from the priority date continuing until 
the beneficiary obtains lawful permanent residence. The regulation at 8 C.F.R. § 204.5(g)(2) requires 
that "[e]vidence of this ability shall be either in the form of copies of annual reports, federal tax 
returns, or audited financial· statements." In this case, the priority date is the date the immigrant 
petition was filed. See 8 C.F.R. § 204.S(d). 
The Petitioner submitted evidence of wages paid to the Beneficiary in the priority date year and the 
subsequent year that exceed the proffered wage, but without the regulatory-required evidence, we 
cannot affirmatively find that the Petitioner has the ability to pay. On remand, the Director should 
request such regulatory-required evidence and allow the Petitioner reasonable time to respond. 
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Matter of E-O-. Inc. 
IV. CONCLUSION 
As the Director's decision did not· evaluate the Beneficiary's eligibility as a function manager 
abroad, we will remand the matter to the Director for further consideration. On remand, the Director 
should also address whether the Petitioner has demonstrated its ability to pay the proffered wage. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
Cite as Matter of E-O-. Inc., ID# 2152435 (AAO Mar. 1, 2019) 
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