remanded EB-1C Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-A- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 8, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of software development services, seeks to permanently employ the 
Beneficiary as its chief executive officer (CEO) under the first preference immigrant classification 
for multinational executives or managers. See Immigration and Nationality Act (the Act) 
section 203(b)(1)(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, Nebraska Service Center, denied the petition. The Director concluded that the 
Pe~itioner did not establish that the Beneficiary was employed abroad in a managerial or executive 
capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner an appellate brief asserting that 
the Director erred by failing to consider the Beneficiary's daily job duties and the job duties of the 
Beneficiary's subordinates. The Petitioner further contends that the Director erred in concluding that 
the Beneficiary was not employed abroad in an executive capacity "without providing a cogent 
reason or analysis" explaining the basis for his conclusion. 
Upon de novo review, we will we will withdraw the Director's decision and remand this matter to 
the Director for further proceedings and entry of a new decision. 
I. LEGAL FRAMEWORK 
Section 203 (b) of the· Act states in pertinent part: 
(1) Priority Workers.- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain multinational executives and managers. An alien is described in this 
subparagraph if the alien, in the 3 years preceding the time of the alien's 
application for classification and admission into the United States under this 
Matter of A-A- LLC 
subparagraph, has been employed for at least 1 year by a firm or corporation or 
other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter 
the United States in order to continue to render services to the same employer or 
to a subsidiary or affiliate thereof in a capacity that is managerial or executive. 
A United States employer may file Form 1-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(1)(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The regulation at 8 C.F.R. § 204.50)(3) states: 
(3) Initial evidence-
(i) Required evidence. A petition for a multinational executive or manager must 
be accompanied by a statement from an authorized official of the petitioning 
United States employer which demonstrates that: 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside the 
United States for at least one year in a managerial or executive capacity by 
a firm or corporation, or other legal entity, or by an affiliate or subsidiary 
of such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer 
or a subsidiary or affiliate of the firm or corporation, or other legal entity 
by which the alien was employed overseas, in the three years preceding 
entry as a nonimmigrant, the alien was employed by the entity abroad for 
at least one year in a managerial or executive capacity 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by 
which the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at 
least one year. 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
As a threshold matter, we note that while the Director's entire analysis was focused on the 
Beneficiary's proposed employment in the United States, he concluded that the Petitioner did not 
establish that the Beneficiary was employed abroad in an executive or managerial capacity. 
Reviewing this conclusion within the context of the entire statement, where the Director specifically 
referred to "the reasons explained above" as the basis for his conclusion, we find that the Director's 
2 
Matter of A-A- LLC 
reference to the employment abroad when stating the final conclusion was an unintentional error. As 
the Petitioner duly points out on appeal, the Director did not discuss the Beneficiary's employment 
abroad or provide a reason for making an adverse conclusion on this issue. Moreover, based on our 
own comprehensive review of the record, we find that there is no basis for reaching an adverse 
conclusion with regard to the Beneficiary's employment abroad. As such, the Director's inadvertent 
finding is hereby withdrawn and we will now address the conclusion that the Director clearly 
intended to make based on his underlying analysis of the factors pertaining to the Beneficiary's 
proposed employment with the petitioning entity. 
The regulation at 8 C.P.R. § 204.5G)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. 
The statement must clearly describe the duties to be performed by the Beneficiary. 
In the present matter, the Petitioner claims that the Beneficiary will be employed in the United States 
in an executive capacity. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the ?rganization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision .or direction from higher-level executives, 
the board of directors, or stockholders of the organization. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101(a)(44)(C) ofthe Act. 
A. Evidence of Record 
The Petitioner filed Form I-140 on January 15, 2015. On the Form I-140, the Petitioner indicated 
that it has six current employees in the United States and a gross annual income of$1,811,916. The 
Petitioner also provided multiple supporting statements containing the Beneficiary's position 
descriptions. In its supporting statement, dated December 17, 2014, the Petitioner provided a chart 
listing the functions the Beneficiary would direct, the percentage of time he would devote to each 
function, the team members responsible for carrying out the underlying duties ofthe function, and 
disclosure of whether the team members who perform those duties are the Beneficiary's direct or 
3 
Matter of A-A- LLC 
indirect subordinates. The chart indicates that a number of the team members responsible for 
carrying out the underlying duties of various functions were located abroad and working for the 
Petitioner's parent entity. In the same supporting statement, the Petitioner named a number of its 
corporate clients. The Petitioner stated that the Beneficiary reports exclusively to the CEO of the 
foreign parent entity and explained that the Beneficiary's performance is measured by the 
Petitioner's sales volume, "number of strategic clients engaged," gross revenue, and its "timely 
compensation for" services provided by employees of the Petitioner's foreign parent entity. The 
Petitioner also offered a statement from the Beneficiary's former employer abroad containing a 
similar chart, which listed six main categories, the functions and job duties associated with each 
category, the subordinates responsible for execution of those duties, and the percentage of time the 
Beneficiary allocated to directing each category or function. The statement indicated that the foreign 
entity was comprised of 13 departments and had 204 employees. 
In addition, the Petitioner provided copies of contracts it has executed with corporate clients under 
the Beneficiary's leadership and a copy of its organizational chart depicting the Beneficiary at the 
top of a hierarchy, which consists of a senior business development manager and a chief technology 
officer (CTO) as the Beneficiary's two direct subordinates in the United States, a business 
development manager subordinate to the senior business development manager, and two 
independentcontractors -a software engineer and a "technology evangelist"- as the CTO's direct 
subordinates. 
The Director issued a request for evidence (RFE) on June 9, 2015, instructing the Petitioner to 
submit evidence to establish, in part, that the Beneficiary will be employed in a managerial or 
executive capacity in the United States. 
The Petitioner complied with the Director's RFE by providing, in part, the following evidence: 
(1) an employment letter from the foreign entity listing the foreign entity's employees and their 
respective job descriptions; (2) a supplemental job description for the Beneficiary's proposed 
position accompanied by a sample weekly breakdown of the job duties performed and the specific 
portion of time the Beneficiary allocated to each job duty during a specific one-week time period; 
(3) a copy of the Petitioner's organizational chart accompanied by a comprehensive organizational 
chart of the entire organization, which includes both the Petitioner and the Beneficiary's former 
employer abroad; and (4) payroll documents and two contractor agreements, verifying the 
information provided in the Petitioner's organizational chart. 
The Director denied the petition on October 7, 2015, concluding, in part, that the Petitioner did not 
establish that the Beneficiary will devote his time primarily to managerial job duties. In denying the 
petition, the Director found that the Petitioner provided a deficient job description for the 
Beneficiary and failed to specify which operational or administrative tasks it requires for operation 
and who performs those tasks. The Director also found that the Petitioner failed to provide job 
descriptions for the Beneficiary's subordinates. 
4 
Matter of A-A- LLC 
On appeal, the Petitioner submits a brief in which it asserts that the Director incorrectly evaluated 
the Beneficiary's proposed position under the criteria contained in the definition of managerial 
capacity, when in fact the Petitioner sought to classify the Beneficiary in an executive capacity. The 
Petitioner points to specific documents that contain information pertaining to the Beneficiary's 
executive job duties within the context of the Petitioner's sales-based business operation. The 
Petitioner also reiterated the executive-level decisions the Beneficiary made in his capacity as its 
CEO and referenced one of the RFE response statements, which addressed the Beneficiary's U.S. 
employment and listed the job duties of the Beneficiary's two direct subordinates. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the record is persuasive in establishing that the Beneficiary will be 
employed in an executive capacity in the United States. 
When examining the executive or managerial capacity of a given beneficiary, we will look first to 
the petitioner's description ofthe job duties. See 8 C.P.R. § 204.50)(5). The Petitioner's description 
of the job duties must clearly describe the duties to be performed by the Beneficiary and indicate 
whether such duties are in a managerial or executive capacity. ld. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the 
Act, 8 U.S.C. § 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the 
management" and "establish the goals and policies" of that organization. Inherent to the definition, 
the organization must have a subordinate level of managerial employees for a beneficiary to direct 
and a beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "direct" the enterprise as an 
owner or sole managerial employee. A beneficiary must also exercise "wide latitude in discretionary 
decision making" and receive only "general supervision or direction from higher level executives, 
the board of directors, or.stockholders of the organization." ld. 
Beyond the required description of the job duties; USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
In the present matter, the Petitioner claims that the Beneficiary's proposed position would be in an 
executive capacity. In support of this claim, the Petitioner provided multiple job descriptions 
ranging from the general job responsibilities to the specific job duties performed during the course of 
5 
(b)(6)
Matter of A-A- LLC 
an isolated one-we~k time period. The Petitioner supplemented this information with job 
descriptions ofthe Beneficiary's direct and indirect subordinates in the United States, copies of work 
contracts between the Petitioner and its U .S.-based corporate clients, a work flow chart illustrating 
the Petitioner's . use of the foreign entity's supervisory and professional staff to carry out certain 
operational tasks that are necessary to execute client contracts, and organizational charts of the U.S. 
and foreign entities, which provide a comprehensive view of the entire organization, illustrate the 
Beneficiary's role within the context of that organization, and explain how the Petitioner and the 
foreign entity work together to service the Petitioner's clients. 
In short, the record contains sufficient evidence to establish that the Beneficiary oversees the 
Petitioner's sales and marketing departments, its market analysis and strategic planning, delivery of 
services, and its finances and accounting functions. While some underlying duties associated with 
key departments and functions are carried out by U.S.-based staff, others tasks that involve project 
and process management, accounting, marketing, and software development are assigned to 
employees of the foreign entity, which is located in Belarus. 
Accordingly, after considering the record in its entirety, we find that the Petitioner has established by 
a preponderance of the evidence that the Beneficiary's duties are primarily executive in nature, while 
the day-to-day operational tasks associated with the Petitioner's daily functions are performed by 
other staff within the Petitioner's multinational organization. Matter of Chawathe, 25 I&N Dec. 
369, 376 (AAO 2010). 
III. ABILITY TO PAY 
Although the Director's decision will be withdrawn, the petition is not approvable based on the 
record before us. Upon review, we find insufficient evidence to establish that the Petitioner had the 
ability to pay the Beneficiary's proffered wage commencing with the date the petition was filed. 
Accordingly, the matter will be remanded to the Director for further proceedings consistent with our 
discussion below. 
The regulation at 8 C.F.R. § 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be. 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be in the form of copies of annual . 
reports, federal tax returns, or audited financial statements. 
In the present matter, the petition was filed on January 15, 2015, and was not accompanied by the 
Petitioner's annual report, federal tax return, or audited financial statement that established that the 
Petitioner had the ability to compensate the Beneficiary's proffered wage of $77,650 per year at the 
6 
Matter of A-A- LLC 
time of filing. Rather, the Petitioner's supporting evidence included a copy ofthe Petitioner's 2013 
corporate tax return, unaudited balance sheets and income statements for 2014, state quarterly wage 
reports for the second and third quarters of2014, and bank statements. 
In response to the RFE, the Petitioner provided additional bank statements and the Petitioner's 
company-generated statement of revenues for the quarters comprising 2013 and 2014. 
As indicated at 8 C.F .R. § 204.5(g)(2), the Petitioner has the burden of establishing its ability to pay 
commencing with the date it files the Form 1-140 and continuing until the Beneficiary obtains lawful 
permanent residence. In order to establish the ability to pay, the Petitioner must provide copies of its 
annual reports, federal tax returns, or audited financial statements for the relevant time period in 
question. The documents described above do not fall within the scope of the documents that are 
expressly required by regulation. 
Based on the evidentiary deficiencies discussed above, the Petitioner has not established that it has 
the ability to pay the Beneficiary's proffered wage. 
IV. CONCLUSION 
The Petitioner has not submitted sufficient evidence establishing that at the time of filing and 
continuing through the present time it had and continues to have the ability to pay the Beneficiary's 
proffered wage. Consequently, the matter will be remanded to the Director. On remand, the 
Director should afford the Petitioner an opportunity to submit additional evidence addressing this 
ISSUe. 
ORDER: The decision of the Director, Nebraska Service Center, is withdrawn. The matter is 
remanded to the Director, Nebraska Service Center, for further proceedings consistent 
with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of A-A- LLC, ID# 17487 (AAO July 8, 2016)