remanded EB-1C Case: Software Engineering

MATTEROFM~~-~ 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 25, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software, services, and Internet technology company, seeks to permanently employ 
the Beneficiary as a senior software engineer 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. § 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 a managerial or 
executive capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that it would employ the Beneficiary in a managerial or executive capacity in 
the United States. 
On appeal, the Petitioner asserts that the Director "incorrectly prejudiced" this petition, overlooked 
relevant and substantial supporting evidence, and failed to apply the correct standard for analyzing 
managerial capacity. The Petitioner maintains that the evidence of record establishes that the 
Beneficiary will be employed as a function manager. 
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 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 
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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. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Petitioner has consistently claimed that the Beneficiary will be employed in the United States in 
a managerial capacity, specifically as a function manager. 
"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. 
A. Withdrawal of Director's Decision 
The record of proceeding reflects that the Petitioner filed two immigrant petitions for the Beneficiary 
in 201 7 - the instant first preference petition, as well as a petition requesting that he be classified as a 
professional under the third preference immigrant classification. See section 203(b )(3)(A)(ii) of the 
Act. 
The Director denied this petition based on a finding that the Beneficiary's proposed job description 
submitted with this petition is inconsistent with the job description that appeared on the Petitioner's 
ETA Form 9089, Application for Permanent Employment Certification, which was submitted with its 
third preference petition. The Director, citing to Matter of Ho, 19 I&N Dec. 582 (BIA 1988), observed 
that "[ d]oubt cast on any aspect of the petitioner's proof may, of course lead to a revaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition." 
The Director then proceeded to cite to the regulatory and statutory requirements for this immigrant 
visa classification, before reaching the following conclusion: 
Based upon the fact that comparisons were made between the immediate petition filed 
under section 203(b)(l)(C) on April 13, 2017, and the labor certification classification 
under 203(b )(2) [sic] submitted on December 6, 2017 and found that the position 
descriptions were most [sic] different than the same, the petitioner has not 
demonstrated that the beneficiary is a multinational manager or executive. 
The Director's decision does not discuss any substantive inconsistencies between the pos1t10n 
descriptions, nor does the decision discuss the actual position descriptions at all. Given that the 
Director cited to Ho and suggested that the inconsistencies are substantial enough to cast doubt on the 
reliability and probative value of the evidence submitted in support of this petition, the Director's 
analysis was deficient. The Director's conclusory finding that the two versions of the job description 
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for the Beneficiary's proffered position are inconsistent did not provide an adequate basis for denial 
of the petition. Further, based on our review, we find both position descriptions to be too generalized 
to reveal any clear inconsistencies. 
On appeal, the Petitioner argues that the Director's decision does not address its claim that the 
Beneficiary will be employed as a function manager and "fails to assess the relevant criteria in the 
context of the detailed information provided ... , lacking even a brief explanation or statement of why 
the criteria allegedly have not been satisfied." The Petitioner further contends that the Director's 
conclusion "does not explain why differences between the two positions wholesale disqualify the 
beneficiary for classification as a multinational manager." 
The Petitioner's argument is persuasive. An officer must fully explain the reasons for denying a visa 
petition in order to allow the Petitioner a fair opportunity to contest the decision and to allow us an 
opportunity for meaningful appellate review. 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 fully explain the reasons for denying a 
motion to allow the respondent a meaningful opportunity to challenge the determination on appeal). 
Here, the Director's conclusion was not supported by an analysis of the Petitioner's evidence or an 
explanation of why that evidence was insufficient to support the Petitioner's claim that it will employ 
the Beneficiary in a managerial capacity. Accordingly, the Director's decision is withdrawn. 
B. Basis for Remand 
Although the Director's decision is withdrawn, the evidence ofrecord is not sufficient to establish that 
the Petitioner will employ the Beneficiary in a managerial capacity as a function manager. 
Accordingly, the matter will be remanded to the Director for further review and entry of a new 
decision. 
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 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). 
The Petitioner states that, as a senior software engineer, the Beneficiary "will manage the~I ----~ 
team" in the "Strategic Enterprise Services IT, Enterprise Platform, and Corporate Service 
Department." The Petitioner further explained that '1 I manages authorization access 
control for numerous [company] Line-of-Business applications that process business workflow which 
impacts billions of dollars of [company] revenue." 
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However, additional evidence is needed to establish: that thel lteam, department, or product 
is a clearly defined function of the organization; that the Beneficiary would primarily manage, rather 
than perform, engineering functions associated withl I that he will act in a senior position 
within the Petitioner's hierarchy with respect to the claimed function; and that the extent and scope of 
his authority over the function's day-to-day operations is consistent with the definition of managerial 
capacity. 
Although the Petitioner states that the Beneficiary will manage a team, it also indicates that he does 
not have any direct reports, but rather provides direction and guidance to five un-named software 
engineers. The Petitioner has not sufficiently identified and documented this team or the duties they 
and others perform to relieve the Beneficiary from performing non-qualifying duties associated with 
I I 
The record is also lacking company organizational charts showing the structure and hierarchy within 
the "Strategic Enterprise Services IT, Enterprise Platform, and Corporate Service Department" where 
the ~---~function resides. The Petitioner cannot meet its burden to establish that the 
Beneficiary acts in a senior position with respect to the function if it does not identify his supervisors, 
lateral staff: and the indirect reports who perform the function's day-to-day non-managerial functions. 
Finally, the Petitioner must establish that the Beneficiary's duties are primarily managerial in nature. 
While the Petitioner provided a breakdown of the Beneficiary's areas of responsibility and assigned 
percentages of time to be allocated to each area, the description is broad and does not sufficiently 
delineate his expected day-to-day tasks. For example, the Petitioner states that the Beneficiary will 
spend 40% of his time managing "the daily engineering excellence, operations and solution releases," 
by managing "the trade-off of various designs, customer requirements and cost." However, it did not 
explain, in layman's terms the specific duties he will perform to carry out these functions. Further, 
the Petitioner went on to state that he will spend another 50% of his time "acting as leader and manager 
of thel t which also involves managing "the daily engineering excellence, operations and 
solution releases" and leading "the technical direction regarding design decisions." Both of these areas 
of responsibility generally describe his authority and oversight, without describing his specific daily 
tasks. 
As the Director did not sufficiently address the Petitioner's evidence or provide notice of the 
evidentiary deficiencies addressed herein, the matter will be remanded for further review and entry of 
a new decision. The Director is instructed to issue a new request for evidence and allow the Petitioner 
a reasonable opportunity to submit additional evidence to address the deficiencies discussed above. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings and entry of a new decision consistent with the foregoing analysis. 
Cite as Matter of M-0, ID# 3009334 (AAO June 25, 2019) 
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