sustained EB-1C Case: Online Gaming

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U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service; 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JUN 2 0 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 that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
O
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa 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 Delaware corporation that seeks to employ the beneficiary as its president. The petitioner's 
parent company, in South Korea, with over one million 
users in South Korea, Japan , and China . As the U.S. subsidiary , the petitioner operates an online computer 
game service that is optimized for domestic broadband users. 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. 
In support of the Form 1-140 the petitioner submitted a statement dated June 8, 2010, which contained 
relevant information pertaining to the petitioner's eligibility , including an overview of the petitioner's 
business , the business of its foreign parent entity, and descriptions of the beneficiary's foreign and proposed 
employment. The petitioner also provided supporting evidence in the form of financial and corporate 
documents pertaining to both entities. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for additional evidence (RFE) dated July 12, 2010 informing the 
petitioner of various evidentiary deficiencies. Among the deficiencies that the director addressed was the lack 
of sufficient evidence showing that the beneficiary was employed abroad in a qualifying managerial or 
executive capacity . Although the director acknowledged the petitioner's earlier submission of the 
beneficiary 's job description pertaining to the foreign employment, he requested that the petitioner provide a 
more detailed description listing the beneficiary ' s specific job duties and the percentage of time the 
beneficiary allocated to each task. The director also instructed the petitioner to provide the foreign entity's 
organizational chart depicting the beneficiary, his subordinates, and superiors and these employees' detailed 
job descriptions 
The petitioner provided a response statement dated August 12, 2010 which included a list ofthe beneficiary's 
job responsibilities and their respective percentage breakdowns. The petitioner also listed the beneficiary's 
four subordinates and each individual 's key job responsibility. Although the petitioner provided the foreign 
entity 's organizational chart in which the beneficiary's subordinates were depicted , the petitioner did not 
disclose these employees ' job titles. 
After reviewing the record, the director concluded that the petitioner established that the beneficiary would be 
employed in an executive capacity in the United States but failed to demonstrate that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity. The director found that the job description 
pertaining to the beneficiary's foreign employ ment was overly vague and appeared to encompass a wide 
variety of job duties, which may have included the design and development of online computer games. The 
director determined that the information provided did not establish that the beneficiary allocated his time 
primarily to the performance of tasks within a qualifying managerial or executive capacity and therefore 
issued a decision dated November 2, 20 I 0 denying the petition. 
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On appeal, counsel disputes the director's conclusion and resubmits the previously submitted documentation, 
including the beneficiary's foreign job description and the foreign entity's organizational chart. 
Upon review, the AAO finds that the submissions on appeal are not persuasive and fail to overcome the 
director's denial. The discussion below will provide an analysis of the relevant documentation and will 
explain the underlying reasoning for the AAO' s decision. 
I. The Law 
Section 203(b) of the Act states in pertinent part: 
(I) 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 I 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 firm, 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 )(I )(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. 
Section IOI(a)(44)(A) ofthe Act, 8 U.S.C. § IJOI(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
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(ii) 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; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. 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. 
Section 10l(a)(44)(8) ofthe Act, 8 U.S.C. § 110l(a)(44)(8), provides: 
The term "executive capacity" means an assignment within an organization m which the 
employee primarily--
(i) directs the management of the organization or a major component or function 
ofthe organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders ofthe organization. 
H. Discussion 
The primary issue to be addressed in this proceeding is the beneficiary's employment capacity in his position 
with the foreign entity. Specifically, the AAO will examine the record to determine whether the petitioner 
submitted sufficient evidence to establish that the beneficiary was employed abroad by the foreign parent 
entity in a qualifying managerial or executive capacity. 
In examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). The AAO also finds that it is appropriate 
and often necessary to consider other relevant factors, such as an employer's organizational chart, which 
shows the entity's organizational complexity and the beneficiary's placement in relation to other employees 
within the staffing hierarchy. 
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In the present matter, the director properly determined that the initial information provided with regard to the 
beneficiary's employment abroad was overly vague and failed to disclose the specific tasks the beneficiary 
performed on a daily basis. The director also noted that the beneficiary's resume indicated that he took an 
active role in producing the company's product or services. 
On appeal, the petitioner submits additional evidence, including a letter from the Vice President of the 
corporation attesting to the beneficiary's overseas job duties and an organizational chart. 
While the AAO takes note of the relatively vague description of the beneficiary's key responsibilities, the 
AAO observes that the petitioner consistently and persuasively established that the beneficiary managed a 
department, subdivision, function, or component of the overseas organization. Within the organizational 
hierarchy, the beneficiary reported directly to the Vice President of the overseas company and was one of four 
departmental managers within the division who oversaw a workforce of 700 employees. While the 
petitioner could have described the organization with more detail, the general information in the record is 
consistent and supported by relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N 
Dec. 369,376 (AAO 2010). 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10l(a)(44)(A)(i) and (ii) ofthe Act, 8 U.S.C. § 1101(a)(44)(A)(i) and (ii). 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." Section 
101(a)(44)(A)(iv) ofthe Act. If a beneficiary directly supervises other employees, the beneficiary must also 
have the authority to hire and fire those employees, or recommend those actions, and take other personnel 
actions. 
The term "function manager," however, 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) ofthe Act, 8 U.S.C. § 110l(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must fumish a written job offer that clearly describes the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. § 204.5(j)(5). 
In addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the duties related to the function. 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. Boyang, Ltd. v. INS., 67 F.3d 305 (Table), 1995 WL 
576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm'r 
1988)). 
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In this matter, although the pettttoner described the beneficiary as allotting 30 percent of his time to 
supervisory duties, the petitioner provided evidence that the beneficiary managed an essential function of the 
overseas company. On appeal , the Vice President provides a detailed job description, clarifying that the 
beneficiary's "responsibilities were to direct and manage 
the strategy and content portfolio of the service 
website, personalized service section of , and the community service and stereophonic service of 
Through the description of the beneficiary 's department, including the descriptions of the 
subordinate employees, the record adequately describes the beneficiary as the lead employee who was 
accountable for managing an essential or critical function within the organization. 
In the present matter, the AAO finds that the petitioner has provided sufficient evidence to establish that it is 
more likely than not that the beneficiary was employed abroad in a qualifying managerial capacity. See 
Matt er of Chmvath e, 25 I&N Dec. at 3 76. Although the AAO duly notes the director's observations that the 
beneficiary ' s duties may have included the design and development of online computer games , this factor is 
not inconsistent with the petitioner's otherwise credible claims and supporting documentation. 
Ill. Conclusion 
The AAO finds that the petitioner has submitted sufficient evidence to overcome the sole basis for denial and 
that there are no other grounds for denying the petition. The decision of the director will 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 met that burden. 
ORDER: The appeal is sustained.