sustained EB-1C Case: Spreadsheet Management Technology

(b)(6)
DATE: JUN 0 4 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., 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 
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. 
Thank you, 
l~ 
/Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
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DISCUSSION: The Director, Texas Service Center, ("the director") denied the preference visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be sustained. The petition will be approved. 
The U.S. petitioner is a company incorporated in Delaware in December 2005. The petitioner states 
on the Form I-140, Immigrant Petition for Alien Worker, that its type of business is "spreadsheet 
management technology." The petitioner indicates that it employs five personnel, and reported a 
gross annual income of over $4.1 million (worldwide) when the petition was filed. It seeks to employ 
the beneficiary as its Vice-President Americas. 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)(1)(C), as a multinational executive or manager. 
On September 14, 2012, the director denied the petition determining that the petitioner failed to 
establish that it would employ the beneficiary in a managerial or executive capacity. 1 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal , counsel asserts that the director's basis for denial of the 
petition was erroneous and contends that the evidence of record is sufficient to satisfy the petitioner's 
burden of proof in that the evidence establishes the beneficiary's eligibility for the requested 
classification. 
I. The Law 
To establish eligibility for the employment-based immigrant visa classification, the petitioner must 
meet the criteria outlined in section 203(b) of the Act. 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 
1 Counsel for the petitioner addresses the issue of the beneficiary's managerial/executive capacity for the 
foreign entity on appeal; however, although the director references the description of the beneficiary's job 
duties for the foreign entity as being insufficient to establish the beneficiary's managerial/executive capacity 
for the petitioner, the director does not make a determination that the petitioner failed to establish the 
beneficiary's managerial capacity for the foreign entity. Upon review of the totality of the record, the director 
correctly did not find a lack of eligibility on this issue. 
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continue to render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
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. 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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(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; 
(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 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means 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; 
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(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 of the organization. 
II. The Issue on Appeal 
The issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity. 
In a letter appended to the petition, the petitioner stated that it provides technology for managing, 
analyzing, and auditing the activity and data generated by Excel spreadsheets. The petitioner noted 
that it conducts sales, consulting, training and product implementation activities out of its New York 
office, has ongoing contracts with global banks and hedge funds to provide support and maintenance, 
and that it is looking to broaden the scope of its operation to encompass more technical aspects of the 
business. The petitioner indicated that the beneficiary had initially entered the United States in L'1A 
visa status to assume the position of Head Software Architect, responsible for all decisions relating to 
the functional and technical evolution of the company's proprietary products. The petitioner indicated 
further that the beneficiary was promoted to the position of Vice-President, Technology less than a 
year after entering the United States and was promoted again in March 2011 to the position of 
Vice-President, Americas. The petitioner stated that it now wished to employ the beneficiary 
permanently in this position and indicated the beneficiary's responsibilities as Vice-President, 
Americas included: the day-to-day operations of the company in the United States; carrying out 
policies; and operating within the guidelines set forth by the international management team. The 
petitioner noted that the beneficiary provides direction and leadership to the regional staff and is 
responsible for ensuring customer satisfaction and market share within the Americas region. The 
petitioner also provided an overview of the beneficiary's job duties. 
In response to the director's Notice of Intent to Deny (NOID) the petition, the petitioner provided a 
detailed description of the beneficiary's duties that elaborated upon the duties summarized in the 
initial submission . The petitioner also allocated the beneficiary's time to specific aspects of the 
petitioner's management operations as well as provided specific documentary examples illustrating 
the beneficiary's work in defining the petitioner's standards of operation and policies, work with 
senior figures in major investment banks, and day-to-day work making discretionary decisions. 
Upon review, the director determined that the petitioner had not established 
the beneficiary would be 
employed in either a managerial or executive capacity. The director determined that the beneficiary 
would be engaged primarily in producing the petitioner's product or service. 
On appeal, counsel for the petitioner observes that the director failed to consider the detailed 
description of the beneficiary's job duties submitted in rebuttal to the NOID and furthermore, failed to 
consider the documentary evidence submitted demonstrating the beneficiary's management of the 
organization . Counsel asserts that the director also failed to understand the petitioner's organizational 
(b)(6)
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structure when determining that the beneficiary was the individual who produces the petitioner's 
product. Counsel notes that the software solution products that the petitioner provides to clients are 
produced at the London office of the petitioner's affiliated company and are not produced by the 
petitioner. Counsel also references the organizational chart that had been provided which details the 
corporate structure of the petitioner and its affiliated company in support of her assertion. Counsel 
concludes that the petitioner has established that the beneficiary functions at a senior level within the 
organization, exercises discretion for managing the U.S. operations , supervises and controls the work 
of other professionals, as well as develops new sales operations and product implementation policies 
and processes. 
III. Analysis 
Upon review , the petitioner has established that the beneficiary will be employed in the United States 
in a managerial capacity as a function manager. The AAO conducts appellate review on a de novo 
basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). 
When 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 petitioner's description of 
the job duties must clearly describe the duties to be performed by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. !d. To establish eligibility the 
petitioner must demonstrate that the beneficiary's responsibilities will meet the requirements of one or 
the other capacity. 
In this matter, the petitioner establishe s that the beneficiary will perform the duties of a function 
manager. 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). 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 furnish 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. 
See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); see also Boyang, Ltd. v. I.N.S., 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)). 
On appeal, counsel for the petitioner clarifies that the beneficiary manages the process of developing 
new sales operations and product implementation policies and that this is an essential function of the 
organization. A review of the petitioner's detailed description of the beneficiary's actual duties 
provides sufficient information to demonstrate that the beneficiary will not primarily perform the 
development of the software solutions and will not primarily perform the sales operations or product 
implementation but that the work will be performed by others inside and outside of the organization. 
(b)(6)
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The petitioner initially provided a broad description of the beneficiary's primary duties which did not 
include sufficient information to ascertain the beneficiary's actual role within the organization. In 
response to the NOID, the petitioner provided the detail and time allocation necessary to establish 
that the beneficiary primarily performs duties in a managerial capacity. The description provided 
included elements that suggested the beneficiary would spend some time performing non-qualifying 
functions; however, a review · of the totality of the record including the documentary evidence 
supporting the beneficiary's role within the organization establishes the beneficiary will primarily 
perform in a managerial capacity . 
The petitioner has established that the beneficiary is the individual who manages the entire process by 
which the petitioner's products are sold in the United States and how the products are implemented. 
As the director recognized, the actual sales, implementation, and training of clients' personnel in the 
use of the petitioner's product are carried out by other employees. Moreover, a review of the totality 
of the record, including clarifying evidence submitted on appeal, establishes that the beneficiary will 
not be involved primarily in producing the petitioner's product or service. 
The review of the totality of the record in this matter included not only the beneficiary's job 
description, but also the petitioner's organizational structure, the duties of all the petitioner's 
employees, the presence of other employee s to relieve the beneficiary from performing operational 
duties, the nature of the petitioner's business, and other factors that contributed to a complete 
understanding of a beneficiary's actual duties and role in the business. Upon that review, the record 
includes sufficient evidence to establish that the beneficiary will be employed in a bona fide function 
manager position for the U.S. business entity. Accordingly, the director's decision will be withdrawn 
and the appeal will be sustained. 
IV. Conclusion 
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. Here, the petitioner has sustained that burden. 
Accordingly, the director's decision is withdrawn. The appeal will be sustained and the petition 
approved. 
ORDER: The appeal is sustained.