remanded EB-1C Case: Software

U.S. Citizenship 
and Immigration 
Services 
MATTER OF O-A- , INC . 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 6, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , a software company , seeks to permanently employ the Beneficiary as a sales director 
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 permanently transfer a qualified foreign employee to the United 
States to work in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity. 
On appeal, the Petitioner asserts that the Director erred by inferring discrepancies that do not actually 
exist in the Petitioner's evidence. 
Upon de nova review , we will withdraw the Director's decision and remand the matter for entry of a 
new decision consistent with our discussion below. 
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 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). 
Matter of 0-A-, Inc. 
II. ANALYSIS 
"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). 
Based on the statutory definition of managerial capacity, the petitioner must first show that the 
beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the petitioner must prove that the 
beneficiary will be primarily engaged in manager 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); Champion World, 940 F.2d 1533. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are required to 
primarily supervise and control the work of other supervisory, professional, or managerial employees. 
The term "function manager" applies generally when a beneficiary's managerial capacity derives not 
from supervising or controlling a subordinate staff: but instead from primarily managing an "essential 
function" within the organization. See section 101 ( a)( 44)(A)(ii) of the Act. If a petitioner claims that 
a beneficiary will manage an essential function, it must clearly describe the duties to be performed in 
managing the essential function. In addition, the petitioner must demonstrate that: 
(1) 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 this matter, the Director denied the petition based on a finding that the Petitioner made inconsistent 
statements regarding the Beneficiary's position in the United States, which she already holds in L-lA 
nonimmigrant status. 
The Petitioner initially stated that the Beneficiary is a function manager, managing the essential "sales 
function for throughout Venezuela, Central America and the Caribbean." The Beneficiary's five-page 
job description also indicated that the Beneficiary "supervises and controls the work of professional­
level employees, including eight sales representatives, a renewal partner, a business analyst, and a 
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Matter of O-A-, Inc. 
"Deal Management" worker who works with customer contracts. An organizational chart showed 
those 11 employees under the Beneficiary's authority. 
The Director instructed the Petitioner to "clarify whether the beneficiary is primar[il]y a personnel 
manager or primarily a function manager," because the Beneficiary "cannot primarily perform the 
duties of [both] a personnel manager and a function manager." In response, the Petitioner asserted: 
"The Beneficiary occupies a functional management role in the United States." The Petitioner 
submitted a revised job description, which omitted the prior references to the Beneficiary's supervision 
of professional staff but retained a passage indicating that the Beneficiary"[ o ]versees specialized Sales 
Representatives." 
The Director denied the petition, based in part on the finding that the two job descriptions are 
inconsistent. The Director stated: "at the time of filing, the petitioner depicted that the beneficiary 
supervised personnel to some degree," but the Petitioner contradicted this claim by submitting another 
job description that did "not contain any duties associated with the supervision of personnel." The 
Director found that this discrepancy cast doubt on the credibility of the job descriptions. 
On appeal, the Petitioner that it "has represented from the outset ... that this Sales Director position 
is one involving a functional manager and only indirectly or incidentally involves the management of 
personnel," and that the Beneficiary's oversight of employees is "in furtherance of the function 
managed." The Petitioner also notes that the revised job descriptions continued to acknowledge that 
the Beneficiary"[ o ]versees sales representatives," which refutes the Director's finding that the revised 
job description did "not contain any duties associated with the supervision of personnel." 
We find the Petitioner's explanation to be credible, and the job descriptions to be essentially consistent. 
The Director informed the Petitioner, in essence, that the emphasis had to be either on function 
management or personnel management, and the Petitioner accordingly placed more emphasis on 
function management. The record reflects no wholesale change in the Beneficiary's claimed duties. 
Furthermore, the presence of subordinates in professional occupations does not necessarily or 
automatically rule out a beneficiary's eligibility as a function manager. 
The Director cited another apparent discrepancy relating to the Beneficiary's duties. The Petitioner 
divided the Beneficiary's duties, both in the United States and abroad, into four categories: 
• Organizational management (20% of her time) 
• Operational management (30% of her time) 
• Sales management (30% of her time) 
• Client management (20% of her time) 
Within each of the four broad categories, the Petitioner listed several tasks that the Beneficiary 
performed or performs. A discussion of the Beneficiary's prior employment abroad included the same 
breakdown of four broad categories with the same time percentages, but with some additional tasks 
within the sales management and client management categories. The U.S. job description had 23 
elements; the foreign job description had those same elements and added the following: 
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Matter of O-A-, Inc. 
• Led regular executive-level sales review meetings with regional sales management 
• Reviewed regional strategies and execution plans for local events to target key 
consumers 
• Oversaw finance, marketing, consulting and human resources 
• Strategized and directed the preparation and execution of biannual transformational 
technology presentations to key account executives across financial, manufacturing, 
and telecommunication industries 
After the Director requested more evidence, the Petitioner submitted revised U.S. and foreign job 
descriptions that closely matched one another. 
In the denial notice, the Director noted: "although the categories are the same for the position abroad 
and in the U.S., the day-to-day task[ s] within the group[ s] are different." It is not readily apparent that 
the differences between the initial descriptions should have significantly affected the percentage 
distributions among the four broad categories. 
III. FURTHER CORROBORATION 
We agree with the Petitioner that the apparent discrepancies cited by the Director, on their own, are 
not significant enough to warrant denial of the petition, and the record does not appear to show any 
information that is disqualifying on its face. Nevertheless, the burden of proof remains on the 
Petitioner to establish eligibility, and the record as it now stands does not contain enough evidence to 
establish eligibility. 
The Petitioner has described the nature of the Beneficiary's work and listed her subordinate staff, but 
the record does not contain objective documentary evidence to support these assertions. For instance, 
the record does not include payroll documentation to confirm that the Petitioner actually employs the 
Beneficiary and the subordinates named, and in the capacities asserted. 
The Petitioner did submit an organizational chart, showing the names of the Beneficiary, two of her 
superiors, and her 11 claimed subordinates, but this chart does not provide a sufficient picture of the 
Beneficiary's place within a company that claims 49,000 employees in the United States. Some 
additional details would shed more light on the Beneficiary's role in the company overall, relative to 
the function she is said to manage. 
As the matter will be remanded, the Director should request any additional evidence deemed warranted 
and allow the Petitioner to submit such evidence within a reasonable period of time. 
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 0-A-, Inc., ID# 5877580 (AAO Sept. 6, 2019) 
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