remanded EB-1C Case: Software Systems

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-A-P- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 18, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software systems provider, seeks to permanently employ the Beneficiary as a senior 
systems proj.ect manager under the first preference immigrant classification for multinational 
executives or managers. Immigration and Nationality Act (the Act) section 203(b )( 1 )(C), 8 U .S.C. 
§ 1153(b)(l)(~). 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 Nebraska Service Center denied the petition, concluding that the record did not 
estaplish, as required, that the Beneficiary had been employed in a managerial or executive capacity 
abroad. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary acted as a 
personnel manager abroad overseeing subordinate supervisors and professionals. 
We will withdraw the Director's decision and remand the matter for the entry of a new decision 
consistent with the following analysis. 
I. ANALYSIS 
Upon review, we conclude that the Petitioner has established that the Beneficiary acted in a 
managerial capacity abroad. In the denial decision, the Director emphasized that the Petitioner had 
submitted a vague and generic foreign duty description for the Beneficiary. On appeal, the 
Petitioner has submitted additional documentation to further substantiate the nature of the 
Beneficiary's duties, and upon review, we conclude that the Beneficiary's foreign duty description is 
sufficiently detailed and credible. 
The Petitioner also submitted detailed duty descriptions for the Beneficiary's foreign subordinates 
and other evidence indicating that he oversaw several subordinates with bachelor's and master's 
degrees as well as a subordinate team lead overseeing his own subordinates. On appeal, the 
Petitioner has also provided additional supporting documentation corroborating that the Beneficiary 
oversaw and directed the aforementioned subordinate team lead and the other professionals in the 
completion of various information technology projects abroad. In sum, the Petitioner has provided 
sutlicient evidence and supporting documentation to substantiate that the Beneficiary more likely 
Matter of N-A-P- Inc. 
than not oversaw and directed supervisors and professionals in his capacity abroad as a lead systems 
project manager. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section I0l(a)(44)(A) of the Act. Personnel managers are required to 
primarily supervise and control the work of other supervisory, professional, or managerial 
employees. Contrary to the common understanding of the word "manager," the statute plainly states 
that a "first line supervisor is not considered to be acting in a managerial capacity merely by virtue 
of the supervisor's supervisory duties unless the employees supervised are professional." Id. 
Although the Beneficiary's duties indicate that he likely performed some non-qualifying duties 
related to the provision of software solutions, such as writing code and diagnosing sotlware bugs, the 
record is now sufficient,. to demonstrate that he more likely than not primarily delegated non­
qualifying operational tasks to supervisory and professional subordinates. 
In sum, we conclude that the Petitioner sufficiently established that the Beneficiary acted m a 
managerial capacity abroad. 
II. ADDITIONAL ISSUES 
Although not addressed by the Director, we note that the record as currently constituted does not 
support that the Beneficiary would act in a managerial or executive capacity in the United States or 
that the Petitioner is doing business as defined by the regulations. 
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 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. § 204.50)(3). 
In the Form 1-129 filed in February 2017, the Petitioner indicated that it had 48 employees in the 
United States and a submitted 2015 IRS Form 1120 S, U.S. Income Tax Return for an S 
Corporation, reflected that it earned over $7.5 million and paid over $1.5 million in wages during 
that year. In response to the Director's request for evidence (RFE), the Petitioner stated that "as of 
March 2017 [we] had 58 employees in the USA ... and approximately 8 in India." However, it 
further indicated that "in March 201 7, [we] sold most of the assets related to enterprise managed 
services ... now, [the Petitioner] has 3 employees in Minnesota and still owns [the foreign entity's] 
sotlware development and tech support services business in India." In addition, the Petitioner 
submitted Minnesota employer's quarterly wage reports indicating that just before the date of the 
petition the Petitioner had over 50 employees in the first quarter of 2017; but only one, the 
. Beneficiary, by the second quarter of 2017. . 
The Petitioner asserted that the Beneficiary would be employed in a managerial capacity in the 
United States. However, the material changes in the Petitioner's operations just after the date the 
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Matter of N-A-1'- Inc. 
petition was filed leaves significant question as to whether it would sustain the Beneficiary in a 
managerial capacity in the United States as asserted; for instance, it does not appear that he would 
have subordinate managers and professionals in the United States to supervise or to primarily relieve 
him from performing non-qualifying operational tasks. Further, the apparent lack of employees and 
other evidence of its current operations and finances leaves uncertainty as to whether it is still 
providing goods and services in the United States in a regular, systematic, and continuous fasl.1ion. 
8 C.F.R. ~ 204.50)(2). The Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of the filing and continuing through 
adjudication. 8 C.F.R. § .103.2(b)(I ). For these reasons, the Petitioner has not demonstrated that the 
Beneficiary would be employed in a managerial or executive capacity in the United States or that it 
is doing business as defined by the regulations. 
III. CONCLUSION 
On remand, the Director should consider whether the Beneficiary would be employed in a 
managerial or executive capacity in the United States and whether the Petitioner is doing business as 
defined by the regulations. The Director should also afford the Petitioner the opportunity to submit 
additional evidence and assertions specific to these issues. 
ORDER: The decision of the Director dated May 17, 2018 is withdrawn. The matter ts 
remanded for the entry of a new decision consistent with the foregoing analysis. 
Cite as Matter ofN-A-P- lnc., ID# 1883194 (AAO Dec. 18, 2018) 
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