sustained EB-1C Case: Computer Software

(b)(6)
U.S. Department of Homeland Security · 
U. S. Citizenship and Immigration Services 
,Adminisirative Appeals OfFice (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: FEB 0 8 2013 OFFICE:. NEBRASKA SERVICE CENTER FILE: 
IN RE: 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: 
Enclosed please find the decision ·of the Administrative Appeals Office in your case . All of the 
documents related to this matter have been returned to the office that originally decided your case . Please 
be advised that any further inquiry t~at y~u might have concerning your case must be made to that office. 
Thank you, 
Ron Rosenberg . · 
~Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Pagt! 4 
DISCUSSION:· The preference yisa .petition was denied by the Director, Nebraska Service 
Center. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will _be sustained. 
The petitioner is a corporation, organized in Delaware and operating in California, which 
develops and sells computer'software. The petitioner is wholly owned by a British Virgin Island 
-(BVI) parent company, which also maintains ownership of _the petitioner's affiliate In Pakistan. 
The beneficiary established the affiliate in Pakistan and served -as its Chief Executive Officer 
(CEO) for. five years. After a successful product launch, the beneficiary founded the petitioning 
corporation and later consolidated ownership of the United States and Pakistani affiliates under 
the BVI parent_company. The petitioner seeks to employ the beneficiary a:s its CEO and filed 
this immigrant visa petition to c'assify the beneficiary as a multinational executive pursuant to 
section 203(b)(l)(C) of the !~migration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C). 
The director denied the petition based on the 'following grounds of ineligibility: (1) the petitioner 
failed to establish that the beneficiary's proposed employment with the U.S. entity would' be 
within a qualifying managerial or executive capacity; and, (2) the petitioner submitted two 
organizational charts with significant inconsistencies. -
On appeal, the petitioner disputes the director?s findings and provides an appellate brief laying 
out the grounds for challenging the denial. . 
·I. Th~Law 
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 Uniied 
States in order to continue to ren~er services to the . same employer 
or to a subsidiary or affiliate thereof in a capacity that is 
managerial oi- executive . 
(b)(6)
Page 3 
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 
St(ltes in a managerial or executive capaCity. The statement must clearly describe the duties to 
be performed by the alien. 8 C.F.R. § 204.50)(5). 
The term "executive capacity" is defined at section 101(a)(44)(B) of the Act 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 organization, component, or function; 
(iii) exercises wide latitude in discret .ionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the boar~ of directors, or stockholders of the organization. 
8 U.S.C. § 1101(a)(44)(B). 
If staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, USCIS must take into account the reasonable needs of the . . 
organization, iri light of the overall purpose and stage of development of the organization. 
Section 101(a)(44)(C) of the Act. 
Finally, a newly established and · unproven company may not file a visa petition seeking the 
classification of an alien under section 203(b)(l)(C) of the Act. The prospective United States 
employer must have been doing business in a regular, systematic, and continuous manner for at 
least one year prior to filing the visa petition. 8 C.F.R. § 204.5G)(3)(i)(D). · 
II. Executive Capacity 
Upon review of the record, the AAO will withdraw the director's decision and sustain the appeal. 
The petitioner has provided sufficient evidence to establish that the beneficiary will serve m a 
primarily executive capacity within the corporation . . 
The statutory definition of the term "executive capacity" focuses on a person 's elevated position 
within a relatively complex organizational hierarchy, including major components or functions, 
and that person's authority to direct the organization. Under the statute, a beneficiary must have 
the ability to "direct the management" and "establish the goals and policies~· of the organization. 
Section iOl(a)(44)(B)(i) and (ii) of the A~t. Inherent to the definition, the organization must 
(b)(6)
Page 4 
have a subordinate level of managerial employees for the beneficiary to direct and the 
benefiCiary must primarily focus on the broader "goals and policies" of the organization rather 
than the day-to-day operations. 1 The 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 orga11ization." /d. at (iii) and (iv). 
As detailed in the statutory definition, executive-level employment would encompass high-level 
positions such as the CEO, president, vice president, chief financial officer, secretary, or 
treasurer of a corporation. Nonetheless, an indiv~dual will not be deemed an executive under the 
Act simply b~cause he or she has an executive title. See Q Data Consulting, Inc. V. /.N.S.; 293 
F.Supp.2d 25, 29 (D.D.C., 2003). 
Instead, the AAO looks first to the petitioner's description of the job duties to determine whether 
a beneficiary will serve in an executive capacity. 8 C.F.R. § 204.5(j)(5). A detailed and clearly 
defined job description is pivotal to the determination. The actual duties reveal the true natu·re of 
the employment; otherwise, meeting the definitions would simply be a matter of reiterating the 
definition. Fedin Bros. Co., Ltd. v. Sava, 724 F: Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 
F.2d 41 (2d. Cir. 1990). As the beneficiary must "primarily" serve in an executive capacity, the 
description should demonstrate what proportion of the beneficiary's duties would be executive in 
nature and what proportion would be non-executive. Republic of Transkei v. INS,' 923 F.2d 175, 
177 (D.C. Cir. 1991); Q Data Consulting, Inc.; 293 F.Supp.2d at 29. 
In examining the claimed executive capacity of the beneficiary, USCIS reviews the description 
of the job duties within the context of the totality of the record. This review takes into account 
the description of a beneficiary's duties, the beneficiary's position within the organizational 
. hierarchy, the presence of subordinate employees, the employment and remuneration of those 
employees, the nature of the petitioner's business operations, and · any other evidence that 
contributes to a complete understanding of a beneficiary's true role in the business. The evidence 
must substantiate that the duties. of the beneficiary correspond to his or her placement in the 
organization's structural hierarchy; artificial tiers of subordinate employees and inflated job titles 
are not probative and will not establish that an organization is sufficiently complex to support an 
executive position. 
Ultimately, the truth is to be determined not by the quantity of evidence alone but by its quality. 
Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). If USCIS fails to believe the facts 
i The plain language of the statute 'does not contemplate the firsr-line supervision of subordinate 
employees. At a minimum, the statute heavily implies that an executive would supervise other 
executives or a lower tier of managerial staff. See sec. 101(a)(44)(B)(i) of the Act ("directs the 
management of the organization"). As the first-line supervision of non-professional employees 
is disqualifying for managers, if it requires more than half of the manager's time, it is reasonable 
to conclude that such duties are similarly incompatible with the statutory definition of executive 
capacity. Cf sec. 101(a)(44)(A) of the Act. 
(b)(6)
Page 5 
avowed in the petition are true, then those assertions may be rejected. Section 204(b) of the Act, 
8 U.S.C. § 1154(b); see also Systronics Corp. v. INS, 153 F. Supp,. 2d 7, 15 (D.D.C. 2001) . 
The petitioner has submitted relevant, probative, and credible evidence that leads the AAO to 
conclude that the beneficiary will, more likely than not, be employed in an executive capacity. 
The petitioner presented a detailed description of the beneficiary's duties . The petitioner stated 
that the beneficiary' .s role with the petitioner is critical as he will "lead the establishment, 
development, and execution of our key strategic objective of growing the company by 50% per 
annum over the next two years and be the face of our company to continue investment in our . . . . 
products." In this role, the petitioner describes the beneficiary as responsible for the "leadership; 
planning and strategy; business performance; innovation and growth; sales, bu~iness and product 
strategy; and, relationship management." . On appeal , the petitioner asserts that the beneficiary 
"serves as the ultimate leader of the organization with the ability to make decisions affecting the 
course, growth, and direction of the company" and that the benefiCiary is also "managing 
seasoned professionals in their goal of high growth in sales, market expansion, and customer 
support." 
In a letter accompanying the petition; the petitioner explained that it is launching a new product 
that will provide an "enterprise private social networking solution for businesses. " The 
petitioner explained that following its initial product successes, it "developed a series of 
prototypes that attracted the attention of investors" which enabled it to secure additional 
investment capital in the amount of $2,317,118.00. Angel investors and two major corporations , 
one a well-known lea~ers in the software industry, contributed this capita!" investment. 
The beneficiary's claimed e~ecutive duties are credible in light of the nature of the petitioner's 
business and its organizational structure. At the time of filing, the petitioner employed a CEO, a 
Head of Platform, a Vice President of Sales, a Vice President of Business Development, a Sales 
Manager, and a Manager of Operations/Sales. In addition, the petitioner established that it works 
closely with its affiliate in Pakistan, which is "responsible for the product design , engineering 
and quality assurance" of the petitioner's products. While the U.S. operations employed a total 
offive managerial or executive staff, the petitioner's affiliate in Pakistan employed an additional 
24 employees, including multiple software and quality assurance engineers. The foreign affiliate 
includes the organization's core product architecture team, application development team, and 
quality assurance team. The petitioner provided an organizational chart with specific job 
descriptions for all individuals employed with the affiliate company abroad. The organizational 
claims are supported by probative evide11ce. · 
While the statute and regulations focus on the actual duties of a9 executive within the petitioning 
United States entity, it may be reasonable for a beneficiary to devote a significant portion of his 
or her time to directing the management of a related ·intemational entity. The regulations should 
be viewed in a manner that would serve the <~)Verarching purpose of this immigrant visa category 
- facilitating the exchange and development of managerial and executive personnel within 
(b)(6)
Page 6 
multinational companies. Given the prevalence of offshore- fa-cilities, "twin plant" 
manufacturing, and other international business structures; the management of a multinational 
business may frequently involve such activities . . 
If a petitioner claims that the beneficiary will supervise directly or indirectly the employees of a 
foreign parent, affiliate or subsidiary in the course of performing his or her executive duties, the 
petitioner must establish that the employees are engaged in duties that support or relate to the 
operations of the U.S. entity. See 8 C.F.R. § 204.50)(2) (defining the terms parent, affiliate and 
. subsidiary); see also sec. 10l(a)(28) of the Act (defining of ·the term "organization"). A 
petitioner would normally submit detailed and credible evidence to establish the existence of the 
foreign organization, its qualifying relationship to the petitioner, the existence and remuneration 
of subordinate staff, and the nature of that staffs work, among other material issues. Simple 
assertions, without supporting documentary evidence, are not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 
1998). 
In this case, the petitioner's offshore business model and probative supporting evidence 
substantiates the petitioner's claim that the beneficiary will direct the management of an 
organization that includes both professional and staff employees who will perform the day-to-
day operations of the business. · · 
Upon review, the petitioner provided a detailed job description of the job duties performed by the 
beneficiary, along with detailed job descriptions, education levels, salaries and specifi~ roles of 
each employee in the petitioning corporation and the affiliated organization abroad. _Ultimately, 
the petitioner submitted sufficient evidence to establish eligibility for this immigrant visa. As 
CEO of the petitioning corporation, the beneficiary maintains the highest position within a 
complex, multinational organization. 
III. Reasonable Needs 
Notably, although the director based his decision partially on the size ·of the enterprise and the 
number of staff, the director did not take ·into_ consideration the reasonable needs of the 
enterprise. As required by section 10l(a)(44)(C) of the Act, if staffing levels are used as a factor 
in determining whether 
an individual is acting in a managerial or executive capacity, the director 
must take into account the "reasonable needs of the organization, in light of the overall purpose 
and stage of development of the organization." 
Reading section 101(a)(44) of the Act in its entirety, the "reasonable n~eds" of the petitioner may 
justify a beneficiary who allocates 51 percent. Of his or her duties to managerial or executive 
tasks as opposed to 90 percent, but those needs_ will not excuse· a beneficiary who spends the 
majority of h_is or her time on non-qualifying duties. The reasonable needs ot' the petitioner will 
not supersede the requirement that the beneficiary be. "primarily" employed in a managerial or 
(b)(6)
Page 7 
executive capacity. See Brazil Quality Stones v. Chertoff, 531 F.3d 1063, 1070 n.lO (9th Cir., 
2008). 
The director noted in his decision that all five of the employees in the United States organization 
purportedly serve in managerial or executive positions, raising doubts about who would perform 
the non-qualifying administrative and oper~tional tasks. 
At the time of filing, the petitioner had been in existence for six years, with a successful product 
launch occurring soon after formation. As previously discussed, the U.S. operations employed a 
total of five managerial or executive staff. Regarding the operational side of the e'nterprise, .the 
petitioner submitte9 evidence to show that it employed subordinate staff members who would 
perform the actual day-to-day, non-managerial operations ofthe company. The petitioner's 
affiliate in Pakistan employs a staff of 24 employees, including·multiple engineers, who may be 
considered an integral part of the organization. The petitioner submitted evidence to demonstrate 
that its initial product release was successful, receiving accolades from the New York Times, the 
Washington Post, ZDNet, Wired, and other major media. 
The AAO notes that this immigrant visa classification is not !ntended for start-up or other 
unproven entrepreneurial enterprises. A newly established company may not file a visa petition 
seeking the classification of an alien under section 203(b)(l)(C) of the Act. By regulation, the 
prospective United States employer must have been doing business in a regular, systematic; and 
continuous manner for at least one . year prior to filing the visa petition. 8 C.F.R. 
§ 204.5G)(3)(i)(D). 
In this case, however, the AAO also considers the beneficiary's well-established re<;:ord as an 
entrepreneur to be material to the reasonable needs of the petitioner, as the beneficiary personally 
organized, managed and assumed the risks of launching the business enterprise. The petitioner 
demonstrated that the beneficiary played the key role in establishing the petitioning company, the 
overseas affiliate, and the BVI parent company. The beneficiary also holds the patents to the 
company's technology and secured the investments needed to create the multinational business. 
At the time of filing, the petitioner had been successfully doing business for years and the 
beneficiary had secured substantial new capital from investors to launch the petitioner's second 
product line. 
Upon review, the petitioner maintains a significant subordinate staff as part of the intermitional 
organizational structure that relieves 
the beneficiary from the day-to-day operations of the 
business. Furthermore, given the beneficiary's key entrepreneurial role in the creation of the 
enterprise, it is reaspnable for the beneficiary to serve as the primary spokesman, the lead 
re(;:ruiter for new investors, and to a certain degree, as the creative force behind the petitioner's 
products and technology.· Considered individually, these duties may not rise to the statutory 
standard. However, the AAO is satisfied that these responsibilities satisfy the reasonable needs 
of the petitioner and, most importantly, that the majority of the beneficiary duties are in fact 
executive in nature. 
(b)(6)
. . . . . 
Page 8 
Given the overall purpose and stage of development of the petitioning organization, the 
reasonable . needs of the United States petitioner is plausibly met by the . services of the 
beneficiary as chief executive officer ~nd four other e~e~utive or managerial employees. 
' ' 
IV. Inconsistencies 
The .9irector noted in his decision several inconsistencies in the two organizational charts 
submitted by the-petitioner. One· chart was submitted with the initial filing, and the second chart 
was submitted in response 'to the director's request for evidence. 
A few errors or minor discrepancies are not reason to question the credibility of an alien or an 
employer seeking immigration benefits. See, e.g., Spencer Enterprises Inc. v. U.S., 345 F.3d 
683, 694 (9th Cir., 2003). Howe~er, anytime a petition includes numerous errors and 
discrepancies, and the petitioner fails to resolve those errors and discrepancies after USCIS 
provides an opportunity to do so, thpse inconsistencies will raise serious concerns about the 
veracity of the petitioner's assertions. · 
On appea( the petitioner provided suf{icient evidence to resolve the concerns and establish that a 
change of personnel occurred betwee* the date that the petition was filed and the time that t~e 
response to the request for evidence . was submitted. The MO will withdraw the director's 
· ·finding that the petitioner submitted inconsistent organizational charts. 
· V. Conclusion 
In visa petition proceedings, the burden. of p,roving eligibility for the benefit sought remains 
entirely with the petitioner. Section_ 2911 of the Act, 8 U.S.C. § 1361. Here, that burden has been 
met. Accordingly, the appeal will be s~stained. 
ORDER: The appeal is sustained. i