sustained EB-1C Case: Software Development

(b)(6)
DATE: MAR 0 4 2013 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
:f,J.!;~ ~p*~~D~ ~f: ~C)iji~,®.iil :~j:Urltf 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services · 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
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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 
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the office that originally decided your case. Any further inquiry must be made to that office. 
. Ron Rosenberg 
~ Acting Chief, Adnlinistrative Appeals Office 
(b)(6)
Page2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AA<b) on appeal. The decision of the director will be 
withdrawn and the appeal will be sustained. 
The petitioner is an Illinois corporation operating in the Uniteo States as a software development company. It 
seeks to employ the beneficiary in the position of team l~ader and solution manager. Accordingly, the 
petitioner endeavors to classify the beneficiary as an em~loyment-based immigrant pursuant to section 
203(b)(1)(C) of the Immigration and Nationality Act (the AJt), 8 U.S.C. § 1153(b)(1)(C), as a multinational 
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executive or manager. In denying the petition, the director determined that the petitioner failed to establish 
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that the beneficiary was employed abroad and that he would be employed in the United States in a qualifying 
managerial or executive capacity. 
On appeal, counsel submits an appellate brief addressing the two grounds that" served as alternate bases for 
denial. Counsel fully expounds on the beneficiary's employrltent with the U.S. and foreign entities providing 
a more comprehensive review of the nature of the foreign and proposed positions. 
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 subpara~phs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 ~ears preceding the time of the 
alien's application for classification and adbussion 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 cbntinue to render services to the 
same employer or to a subsidiary or affilia'te thereof in a capacity that is 
managerial or executive. 
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The langu~ge 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 legaljentity, 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 I_J40 for classification of an alien under section 
203(b)(1)(C) of the Act as a multinational executive or man
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ager. No labor certification is required for this 
classification~ The prospective employer in the United St~tes must furnish a job offer in the· form of a 
statement which indicates that the alien is to be employed irl the United States in a managerial or executive 
capacity. Such a statement must c1<ar1y describe the duties 1 be perfoimed by the alien. 
As stated above, the director's primary focus in denying the petition was on the nature of the beneficiary's 
foreign and proposed employment. I 
(b)(6)
.!;,: : ~ 
Page 3 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) and (ii). Personnel 
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managers are required to primarily supervise and control the work of other supervisory, professional, or 
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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 actihg in a managerial capacity merely by virtue of 
the supervisor's supervisory duties unless the emplo~ees supervised are . professional." Section 
101(a)(44)(A)(iv) of the Act. If a beneficiary directly supenJ.ises other employees, the beneficiary must also 
have the authority to hire and fire those employees, or recobmend those actions, and take other personnel 
actions. Section 101(a)(44)(A)(iii) of the Act. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
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petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). The AAO will then consider this 
information in light of the petitioner's organizational hieratchy, the beneficiary's position therein, and the 
petitioner's overall ability to relieve the beneficiary from ha~ing to primarily perform the daily operational 
tasks. 
Upon review, the petitioner has established by a preponderance of the evidence that the beneficiary is eligible 
for the requested visa classification. See Matter of ChawJthe, 25 I&N Dec. 369, 376 (AAO 2010) . . In 
evaluating the evidence, the truth is to be determined not by ~he quantity of evidence alone but by its quality. 
/d. Thus, in adjudicating the application pursuant to the prepbnderance of the evidence standard, the director 
must examine each piece of evidence for relevance, probatife value, and credibility, both individually and 
within the context of the totality of the evidence, to determin~ whether the fact to be proven is probably true. . 
While the director was correct in placing great emphasis on the description of the beneficiary employment 
with the foreign and U.S. entities, the petitioner has shbmitted sufficient evidence of each entity's 
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organizational structure and the beneficiary's position with respect to others within the department he 
managed abroad and would manage in. the United States. Th6 evidence indicates that the beneficiary was and 
would be positioned to oversee the work of a professional stMr. The AAO finds that sufficient evidence has 
been provided to establish that both entities are adequately s~affed with individuals who are able to perform 
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the daily operational tasks of developing software such that the beneficiary would be relieved from having to 
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do so. Cf Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006) 
Accordingly, the AAO finds that the petitioner p~ovidJ sufficient documentation to establish by a 
preponderance of the evidence that the beneficiary has been ~nd will be employed in a primarily managerial 
capacity. See section 101(a)(44)(A) of the Act. 
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.