sustained EB-1C Case: Computer Software

(b)(6)
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JUL 1 5 2014 OFFICE: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the offi _that origin lly decided your case. Any further inquiry must be made to that office . 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
~ ~~ ·~----- ---- - - - -----------
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The decision of the director will be 
withdrawn and the appeal will be sustained. 
The petitioner is a multinational corporation that operates as a computer software development and consultancy 
business. The petitioner seeks to employ the beneficiary in the United States in the position of project manager. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a 
multinational executive or manager. 
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 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 who 
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. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a finn, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or 
its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
After reviewing the petitioner's original 
supporting evidence as well as evidence that was provided in 
response to a request for evidence (RFE), the director determined that the petitioner failed to establish that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity and therefore issued a 
decision, dated December 11, 2013, denying the petition. In issuing the adverse decision, the director took 
into account the fact that the beneficiary entered the United States in the H-lB nonimmigrant category, rather 
than as an L-lA intracompany transferee, finding this to be an indicator as to the beneficiary's employment 
capacity in his former position with the foreign entity. The director also found that the beneficiary's former 
employment included some non-qualifying job duties, which contributed to the adverse conclusion. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
On appeal, counsel submits an appellate brief disputing the director's decision. Counsel questions the 
director's reliance on the beneficiary's U.S. entry in the H-lB nonimmigrant visa category as a proper 
indicator of the beneficiary's employment capacity in his former position with the foreign entity. Counsel 
also expounds on the beneficiary's prior job duties, the organizational structure within which he carried out 
those job duties, and the level of discretionary authority the beneficiary had over work matters and the 
professional personnel who reported to him. Counsel challenges the director's implication that the 
beneficiary's knowledge of information technology tools is an indicator that the beneficiary's time in his 
former employment with the foreign entity was devoted primarily to carrying out non-qualifying operational 
tasks. Lastly, counsel explains why the original job description, which the petitioner provided in the initial 
supporting statement, dated March 29, 2013, was different from the subsequent job description, which was 
included in the petitioner's RFE response statement, dated September 4, 2013. Specifically, counsel asserts 
that the second job description was intended to contain considerably greater detail based on the RFE 
instructions, which expressly indicated that one of the goals in issuing the RFE was to elicit further, more 
detailed information about the specific job duties the beneficiary performed during his employment with the 
foreign entity. 
In general, when examining the executive or managerial capacity of the beneficiary, we consider the totality 
of the record; we do not limit our review to the job description of the position(s) in question. Therefore, while 
the director was correct in placing emphasis on the description of the beneficiary former employment with the 
foreign entity, we find that further analysis of other elements is required and that the beneficiary's job 
description should have been assessed in light of the organizational makeup and complexity of the division 
within which the beneficiary was placed in his prior position with the foreign entity. Here, having given 
thorough consideration to the beneficiary's job duties in light of these other highly relevant factors, we find 
that the record in its totality contains sufficient evidence and information to overcome the director's adverse 
determination. 
While it is likely that the beneficiary did not allocate 100% of his time to managerial-level tasks, the 
petitioner provided sufficient evidence to establish that the non-qualifying tasks the beneficiary performed 
were only incidental to, rather than the focal point of, the position in question. An employee who "primarily" 
performs the tasks necessary to produce a product or to provide services is not considered to be "primarily" 
employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that 
one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Contrary to the director's finding, the record in the present matter indicates that the beneficiary's placement 
within the former employer's organizational hierarchy, the professional employees whose work he supervised, 
and the management-level job duties he performed all indicate that beneficiary more likely than not allocated 
his time primarily to the performance of tasks within a qualifying managerial capacity, and that the petitioner 
has therefore provided sufficient documentation to meet the preponderance of the evidence standard. 
Accordingly, the director's decision must be withdrawn. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner in the instant case has sustained that 
burden. 
ORDER: The appeal is sustained.