remanded EB-1C Case: Video Games

U.S. Citizenship 
and Immigration 
Services 
In Re: 10819068 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 2, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner seeks to permanently employ the Beneficiary as its chief executive officer (CEO) 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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary would be employed in the United States in an executive or managerial 
capacity. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C . § 1361. Upon de nova 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 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. § 204.5(j)(3). 
"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 petitioner must establish its ability to pay the proffered wage from the priority date and continuing 
until the beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
II. MANAGERIAL CAPACITY IN THE UNITED STATES 
The primary issue that we will address on appeal is whether the Petitioner has established that the 
Beneficiary will act in a managerial capacity in the United States. The Petitioner has not asserted that 
the Beneficiary will act in an executive capacity in the United States. 
The Petitioner must show that the Beneficiary will perform the high-level responsibilities set forth in 
the statutory definition at section 10l(a)(44)(A)(i)-(iv) of the Act. If the record does not establish that 
the position meets all four of these elements, we cannot conclude that it is a qualifying managerial 
position. If the Petitioner establishes that the position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary will be primarily engaged in managerial 
duties, as opposed to ordinary operational activities alongside other employees. See Family Inc. v. 
USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See sections 10l(a)(44)(A)(i) and (ii) of the Act. 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 
10l(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's parent company is a multinational video game developer and global distributor, with 
17 active subsidiaries which are organized into three divisions: internet technology, internet 
entertainment, and global distribution. The evidence establishes that the United States Petitioner 
works closely with three of its foreign affiliates as part of the group's global distribution division, 
which employs staff who are dedicated exclusively to supporting the division's operations. See Matter 
of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). The Petitioner also employs seven 
employees in the United States who are solely dedicated to supporting the division's operations there. 
2 
Upon examination of the detailed position description and the totality of the evidence, the Petitioner 
has established that the Beneficiary's responsibilities will primarily consist of managerial duties 
associated with the global distribution operations for the Petitioner's international organization, 
including distribution in the United States. The record here establishes that the Beneficiary manages 
a clearly defined essential function, as contemplated by sections 10l(a)(44)(A)(i) and (ii) of the Act. 
Further, the record demonstrates that the Beneficiary functions at a senior level within the 
organizational hierarchy and with respect to the function managed. See section 101(a)(44)(A)(iii) of 
the Act. Finally, the Beneficiary has significant discretionary authority over the day-to-day activities 
related to the global distribution operations for the Petitioner's international organization, including 
distribution in the United States. See section 10l(a)(44)(A)(iv) of the Act. 
Upon de nova review, we find that the Petitioner has overcome the reason for denial as stated in the 
Director's decision. The Petitioner has established by a preponderance of the evidence that the 
Beneficiary will act in a managerial capacity in the United States. However, as further detailed below, 
we will remand the matter to the Director. 
III. ABILITY TO PAY 
Although not addressed by the Director in his decision, the record does not contain regulatory­
prescribed evidence of the Petitioner's ability to pay the proffered wage from the priority date onward. 
The regulation at 8 C.F.R. § 204.5(g)(2) states, in part: 
Ability of prospective employer to pay wage. Any pet1t10n 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 either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
In this case, the priority date is May 6, 2019, the date the immigrant petition was filed. See 8 C.F.R. 
§ 204.5(d). The annual proffered wage is $240,000. 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full proffered wage, we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the difference between the proffered wage and the wages paid, if any. If a 
petitioner's net income or net current assets are insufficient, we may also consider other evidence of 
its ability to pay the proffered wage. 1 
1 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Donuts. LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-946 (S.D. Cal. 2015); Rizvi v. Dep 't of 
Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x. 292, 294-295 (5th Cir. 2015). 
3 
The Petitioner established that it paid the Beneficiary more than the proffered wage in 2019. However, 
the record does not contain the Petitioner's annual reports, federal tax returns, or audited financial 
statements from the priority date in 2019 onward. 2 Therefore, we cannot affirmatively find that the 
Petitioner has the continuing ability to pay. On remand, the Director should request regulatory­
required evidence of the Petitioner's continuing ability to pay and allow the Petitioner reasonable time 
to respond. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
2 The record contains a "client copy" of the Petitioner's 2018 federal tax return. 
4