remanded L-1A Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-US, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 15, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129 PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development company, seeks to temporarily employ the Beneficiary as a 
program manager under the L-lA nonimmigrant classification for intracompany transferees. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-
1A classification allows a corporation or other legal entity (including its affiliate or subsidiary) to 
transfer a qualifying foreign employee to the United States to work temporarily in a managerial or 
executive capacity. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that the Beneficiary was employed abroad by a qualifying organization 
· for one continuous year of full-time employment within the three years preceding the application for 
admission to the United States. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director made 
errors of law and fact in concluding that the Beneficiary's contractual relationship with the foreign 
entity was not considered employment. 
Upon de novo review, we will withdraw the Director's decision and remand the matter for entry of a 
new decision. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. Section 101(a)(15)(L) of the Act. In addition, the Beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge 
capacity. !d. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
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Matter of M-US, Inc. 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(1)(1 )(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that 
the alien's prior education, training, and employment qualifies him/her to 
perform the int~nded services in the United States; however, the work in the 
United States need not be the same work which the alien performed abroad. 
II. ONE YEAR OF CONTINUOUS FULL-TIME EMPLOYMENT ABROAD 
The sole issue addressed by the Director is whether the Petitioner established that the Beneficiary 
was employed on a full-time basis by a qualifying foreign entity for one continuous year within the 
three-year period preceding the filing ofthe petition, pursuant to 8 C.P.R.§ 214.2(1)(3)(iii). 
A. Evidence of Record 
The Petitioner filed the Form I-129, Petition for a Nonimmigrant Worker, on September 9, 2015. 
The Petitioner stated that the Beneficiary was employed abroad by its foreign affiliate, 
in Poland as a program manager beginning on July 22, 2014. The Petitioner 
provided a copy of an organizational chart for the foreign entity that depicted the Beneficiary as 
"Senior Project Manager," overseeing three project managers and several project-based indirect 
reports. In a supporting statement, the Petitioner .described the Beneficiary's foreign employment as 
follows (verbatim): 
[The Beneficiary] is responsible for managing, supervising, and controlling the work 
of other professional and managerial employees. [The Beneficiary] manages 
three direct reports who all occupy the role of Project Manager - these Project 
Managers are each professional, degreed employees, and they supervise, 
manage, and control the work of their own subordinate employees who in tum 
support these individuals in delivering client projects. In addition, [the Beneficiary] 
is charged with managing and controlling the work of numerous employees 
that are assigned to work under [the Beneficiary] OJ? a project-by-project basis- these 
project teams are typically large and can be anywhere from 60-100 professional team 
leads, senior developers, quality assurance managers, and software developers of 
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Matter of M-US, Inc. 
various seniority levels, and they all perform their roles in accordance with [the 
Beneficiary's] project vision, strategy, and managerial direction. [The Beneficiary] 
reports only to Vice President of Mobile Delivery (who manages the 
entirety of 1 and [the Beneficiary] represents the only Senior 
Project Manager in the Mobile Sector- he is therefore an immensely crucial manager 
of an essential function and of professional personnel. 
The Director issued a request for evidence (RFE) advising the Petitioner that the initial evidence was 
insufficient to establish that the foreign entity employed the Beneficiary in a managerial or executive 
capacity. The Director noted that the Petitioner indicated on both the Form I-129, L Classification 
Supplement, and in its supporting statement, that the Beneficiary was employed by the foreign 
entity, since July 2014. However, the Director noted that the Beneficiary 
submitted a U.S. Department of State DS-160 visa application on December 5, 2014, indicating that 
he was "Self Employed." The Director indicated that the Petitioner should submit additional 
evidence that the Beneficiary was employed abroad by the foreign entity for one continuous year in 
the past three years. The Director suggested that the Petitioner submit copies of the Beneficiary's 
pay records, personnel records, training records, and/or a letter from the Beneficiary's supervisor 
describing the Beneficiary's experience with the foreign entity. 
In response to the RFE, the Petitioner submitted a letter stating the following 
(verbatim): 
The information provided in [the Beneficiary's] DS-160 and the information provided 
in the I-129 are not in conflict - [the Beneficiary] has been working for 
or "the foreign employer"; the Polish branch 
office of (UK)) since July of 2014 through a business-to-business 
agreement for services entered into by and a company called 
a sole proprietorship wholly owned by and 
consisting solely ()lf [the Beneficiary]. In other words, [the Beneficiary] is contracted 
staff for via his sole proprietorship company. [The Beneficiary] is not 
payrolled as an individual by in the traditional manner -
hence the reason why he declared he was "Self Employed" in the DS-160 of 
December 2014. 
[The Beneficiary's] relationship to has all the 
characteristics of a traditional employer-employee relationship: his work is totally 
ordered, directed, and controlled by his supervisor, managers, and executives at 
he shows up to work at corporate office, uses 
tools, instrumentalities, and technologies (some of it proprietary to 
the company) in carrying out his duties, and develops products released under 
the brand for clients; he is subject to the same internal controls, 
policies, rules and regulations of the company; he is given a 
job title and is located within organizational structure managing and 
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Matter of M-US, Inc. 
reporting to other individually-hired employees; and he is eligible for 
promotion, demotion, and termination according to the same career paths and rules of 
other employees. Additionally, since July 2014, [the Beneficiary] has not 
worked for any other company except The only difference between 
[the Beneficiary] and a employee who is directly on payroll is the way in 
which taxable income is declared and taxed. This arrangement is truly for personal 
financial reasons - that is all. 
The contract between and 
is enclosed - it confirms the following conditions and terms of [the 
Beneficiary's] services for the company: the right of control by over 
the work of [the Beneficiary] is clearly spelled out, in that [the Beneficiary] is 
controlled by in the performance of his work; [the Beneficiary] is 
obligated to honor a non-compete agreement for 12 months after his termination, or, 
in other words, [the Beneficiary] cannot work for any clients for that amount 
of time, which is a significantly restrictive agreement; per the contract [the 
Beneficiary] performs his work with tools provided directly by [the 
Beneficiary] is obligated to give notice of his resignation in accordance with 
policies; and, work-related expenses are paid similar to the way a traditional 
employee's would be. It is also important to note that this is an open ended contract­
it continues indefinitely until one party terminates it. 
The Petitioner further stated that, "based on its own guidance, and that of the U.S. Supreme Court, 
[United States Citizenship and Immigration Services (USCIS)] determines 
whether an employer­
employee relationship exists based on the amount of control the Petitioner has over the Beneficiary's 
work -- i.e., when, where, and how the Beneficiary performs his job." The Petitioner cited a USCIS 
memorandum issued by Donald Neufeld, Associate Director, Service Center Operations, USCIS, 
dated January 8, 2010,1 claiming that the essential element in determining the existence of the 
employer-employee relationship is the right of control, that is, the right of the employer to order and 
control the employee in the performance of his or her work. 2 
The Petitioner's statement was accompanied by a copy of the "General Agreement on Supplying of 
Service" dated July 11, 2014, between and 
which described the terms of the Beneficiary's relationship with the foreign entity. 
1 USCIS memoranda merely articulate internal guidelines for INS personnel; they do not establish judicially enforceable 
rights. An agency's internal personnel guidelines "neither confer upon [plaintiffs] substantive rights nor provide 
procedures upon which [they] may rely." Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 2000) (quoting Fano v. 
O'Neill, 806 F.2d 1262, 1264 (5th Cir.l987)). . 
2 Petitioner also cited the Foreign Affairs Manual (F AM) as an authority supporting the petitioner's argument. It must be 
' noted that the F AM is not binding upon USCIS. See Avena v. INS, 989 F. Supp. I, 8 (D.D.C. 1997); Matter of Bosuego, 
. 17 I&N Dec. 125, 128 n.3 (BIA 1979). The F AM provides guidance to employees of the Department of State in 
carrying out their official duties, such as the adjudication of visa applications abroad. The F AM is not relevant to this 
proceeding. 
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Matter of M-US, Inc. 
The Petitioner also submitted an affidavit signed by Vice President of Human 
Resources of In the affidavit, stated the following (verbatim): 
[The Beneficiary] has been a member of the team since starting on 
July 22, 2014 on a contracted staff basis. [The Beneficiary] did not sign an offer of 
employment nor was added to our payroll strictly as an individual - instead, [the 
Beneficiary] signed an agreement on behalf of his company, 
with to work exclusively for 
is a one-person company, and that person is [the Beneficiary]­
the company and [the Beneficiary] are therefore one and the same. This business-to­
business arrangement was made strictly for financial and tax purposes and no other 
reason. With the exception of how he receives payment for his services he is 
otherwise treated as any other employee. Further, if we had intended for him 
to interact with our company as more of an external vendor, or developer for hire, we 
would not have had him involved in managing other management professionals or 
managing any of the other software professionals who report through his managers. 
We have allowed for this contractual arrangement because it is permitted under Polish 
law and allows us to attract some highly talented professionals who appreciate the tax 
benefits that exist for these types of hiring arrangements. 
At we employ workers on one of two bases: we either employ them 
directly and put them on our payroll, or we enter into an agreement with the worker's 
sole proprietorship business, as is the case with [the Beneficiary]. We employ many 
of our workers in the same way as [the Beneficiary] and there is no distinction 
whatsoever between the two types of employees as to how they are treated as 
members of the workforce: in both cases, orders the work 
and tasks that the person carries out and controls the person in the performance of his 
or her work; they are both subject to the same internal controls and workplace 
policies and rule; they both work along the same career paths and within the same 
organizational structure, and are promoted/demoted in the same way; and they are 
both required to give notice based on the same period. Additionally, we supply a 
phone, laptop, and any additional tools and support that [the Beneficiary] needs to 
adequately perform his job, and he works from our offices with the exception 
of time he spends meeting with clients. And, unlike ordinary vendors, [the 
Beneficiary] takes no ownership in work product, and he is covered under 
insurance provided by the company. And in addition to his management of 
employees, [the Beneficiary] is able to make personnel-related decisions regarding 
those employees, such as termination. The only difference between one group of 
workers and the other is the way in which they are treated for tax purposes. 
The Petitioner submitted a record of invoices and payments from to the 
Beneficiary monthly from July 2014 through August 2015, along with payroll records, resumes, and 
; job descriptions for the Beneficiary's ·three claimed subordinates. 
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Matter of M-US, Inc. 
On November 11, 2015, the Director denied the petition finding that the Petitioner did not establish 
that the Beneficiary was employed abroad by a qualifying organization for one continuous year of 
full-time employment within the three years preceding the application for admission into the United 
States. The Director stated that "the term 'employment' is defined at Title 20, Code of Federal 
Regulations § 656.3 as permanent full-time work by an employee for an employer other than 
oneself." The Director stated that the Beneficiary was employed by 
and, therefore, he was not an employee of the foreign entity as claimed. 
Subsequently, the Petitioner filed a Form I-290B, Motion to Reopen and Reconsider. In support of 
its motion, the Petitioner submitted a supporting statement as follows (verbatim): 
[The Beneficiary] was employed by the recognized foreign affiliate through a 
contract with his personal services company . . . the Service applied an incorrect 
definition of "employment" and entirely ignored all of the relevant precedent 
materials that confirm that common law principles are to be applied to the term 
"employed" or "employment" in the INA and CFR, respectively, as there is no 
specific definition in the Statute or Regulations. Further, the Service compounded the 
error by relying on a definition of "employment" found in an unrelated Department of 
Labor regulation- 20 CFR 656.3. Such an application is contrary to laws of statutory 
construction as the Department of Homeland ~ecurity cannot choose to borrow 
language from the regulations of other agencies or departments and instead should 
promulgate its own regulatory definition. As there is no regulatory or statutory 
definition in the INA or its CFRs the Service must follow the Supreme Court's 
instruction and accept the common law jurisprudence in this area. The decision in 
this case is simply wrong and the Service owes the public and its clients an obligation 
to get it right. 
The Petitioner also submitted a statement of opinion from a Polish employment lawyer, 
who stated that despite being officially considered an employee of' 
the foreign entity directed and controlled the Beneficiary's work and 
such an arrangement is common in Poland utilized by individuals for advantageous tax purposes. 
In its brief supporting the motion, the Petitioner asserted the following: 
In order to determine whether an individual is "employed" for L-1 purposes, the focus 
is one the power of control over the employee's activity. This is confirmed in the 
U.S. Supreme Court's interpretation of the common law, "under which the key 
determinant is the putative employer's right to control the means and manner in 
which the work is performed." NLRB v. United Ins. Co. of America, 390 U.S. 254, 
258 (1968). Specifically, power of control incll;ldes·the employer's right to order and 
control the individual's performance of work and to direct the manner in which the 
work is done. See Matter ofPozzoli, 14 I&N Dec. 569 (Reg. Comm'r 1974). 
6 
(b)(6)
Matter of M-US, Inc. 
The Petitioner also cited Matter ofTessel, Inc., 17 I&N Dec. 631 (Acting Assoc. Comm'r 1981), 
stating that the mere fact that a person has a particular title (partner, director, or vice president) 
should not necessarily be used to determine whether he or she is an employee or a proprietor. The 
Petitioner submitted copies of Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, (1992) and 
Clackamas Gastroenterology Assocs. P. C. v. Wells, 538 U.S. 440; (2003) in support of its assertion 
that the determination of whether an individual is employed for L-1 purposes depends upon the 
power of control that the ·putative employer has over the employee's activity.3 
Finally, the Petitioner explained that, "the Service applied both the wrong definition and the wrong 
statute/regulation, and failed to investigate the common law aspects of this relationship, the Service 
erred in both applying the law, and applying the proper law to relevant facts introduced at the time of 
filing." 
On February 11, 2016, the Director denied the Motion to Reopen and Reconsider restating that the 
Petitioner had not established that the Beneficiary was employed abroad by the foreign entity for the 
requisite period. Specifically, the Director pointed to the "General Agreement on Supplying of 
Service" datedJuly 11, 2014, between and ' 
The Director indicated tha~ in Section 3 of this agreement, entitled "Contractor's 
Responsibilities," it states 
that the Beneficiary is to perform the services ordered by the foreign 
company "independently, without being subject to the direction and supervision" of the foreign 
company. Therefore, the Director concluded that, "USCIS is unable to establish that the Beneficiary 
is a full time employee of the foreign company if the foreign company has a contract with the 
Beneficiary's sole proprietorship which stipulates that the beneficiary is to complete his work 
'independently, without being subject to the direction and supervision of the foreign company."' 
The Director found the evidence of record insufficient to establish that the Beneficiary has been 
employed abroad by a qualifying organization for one continuous year of full-time employment 
within the three years preceding the application for admission to the United States. 
B. Analysis 
Upon review, the Petitioner's assertions are persuasive, in part, and we will withdraw the Director's 
decision dated February 11, 2015. We find that the Director should have applied the common law 
principles to the terms "employed" and "employment" as articulated below. 
In order to establish eligibility for the classification requested, the Petitioner must establish that the 
Beneficiary was "employed" abroad by a qualifYing organization for one continuous year in the 
three years preceding the filing of the petition. The employment abroad must have been in a 
managerial or executive capacity. 8 C.F.R. § 214.2(1)(3)(iii), (iv). 
3 The Petitioner further refers to unpublished decisions in which we determined that the issue of whether an individual is 
an employee shoul4 be evaluated on a case-by-case basis, assessing and weighing the incidents of each relationship with 
no one factor being decisive . While 8 C.F.R. § l03.3(c) provides that AAO precedent decisions are binding on all 
I 
USCIS employees in the administration of the Act, unpublished decisions are not similarly binding. 
,.., 
Matter of M-US, Inc. 
Section 101(a)(44) of the Act, 8 U.S.C. § 1101(a)(44), defines both managerial and executive 
capacity as an assignment within an organization in which an "employee" performs certain 
enumerated qualifying duties. Further, the terms "managerial capacity" and "executive capacity," 
which has been codified and incorporated into the regulations at 8 C.F.R. § 214.2(l)(ii)(B), (C), 
specifically applies solely to "the employee." Neither the former Immigration and Naturalization 
Service (INS) nor USCIS defined the term "employed" or "employee" by regulation for purposes of the 
L-1 visa classification. 
The Supreme Court has determined that where the applicable federal law does not define 
"employee," the term should be construed as "intend[ing] to describe the conventional master­
servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. 
Darden, 503 U.S. 318, 322-323 (1992) ("Darden") (quoting Comfy. for Creative Non- Violence v. 
Reid, 490 U.S. 730,739-40 (1989) ("C.C.N V")). The Court stated: 
"In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which 
the product is accomplished. Among the other factors relevant to this inquiry are the 
skill required; the source of the instrumentalities and tools; the location of the work; the 
duration of the relationship between the parties; whether the hiring party has the right to 
assign additional projects to the hired party; the extent of the hired party's discretion 
over when and how long to work; the method of payment; the hired party's role in hiring 
and paying assistants; whether the work is part of the regular business of the hiring 
party; whether the hiring party is in business; the provision of employee benefits; and 
the tax treatment of the hired party." 
Darden, 503 U.S. at 323-324 (quoting C.C.N V, 490 U.S. at 751-752); see also Clackamas 
Gastroenterology Assocs. P.C. v. Wells, 538 U.S. 440, 445, 447 & n.5 (2003). As the common-law 
test contains "no shorthand formula or magic phrase' that can be applied to find the answer, ... all of 
the incidents of the relationship must be assessed and weighed with no one factor being 
decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258 
( 1968)) (emphasis added). 
Accordingly, in the absence of an express congressional intent to impose broader definitions, both the 
"conventional master-servant relationship as understood by common-law agency doctrine" and the 
Darden construction test apply to understanding of the term "employee" used in Section 101(a)(44) of 
the Act. 
Therefore, in considering whether or not one was an "employee" for purposes of L-1 nonimmigrant 
petitions, USCIS must focus on the common-law touchstone of"control." Clackamas, 538 U.S. at 450. 
The factors indicating that a worker is or will be an "employee" of an "employer" are clearly delineated 
in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; Clackamas, 538 U.S. at 
445; see also Restatement (Second) of Agency§ 220(2) (1958). Such indicia of control include when, 
where, and how a worker performs the job; the continuity of the worker's relationship with the 
employer; the tax treatment of the worker; the provision of employee benefits; and whether the work 
8 
Matter of M-US, Inc. 
performed by the worker is part of the employer's regular business. See Clackamas, 538 U.S. at 445; 
see also EEOC Compl. Man. at § 2-III(A)(l) (adopting a materially identical test and indicating that 
said test was based on the Darden decision). 
It is important to note, however, that the factors listed in Darden and Clackamas are not exhaustive and 
must be evaluated on a case-by-case basis. Other aspects of the relationship between the parties 
relevant to control may affect the determination of whether an employer-employee relationship 
exists. Furthermore, not all or even a majority of the listed criteria need be met; however, the fact finder 
must weigh and compare a combination of the factors in analyzing ·the facts of each individual 
case. The determination must be based on all of the circumstances in the relationship between the 
parties, regardless of whether the parties refer to it as an employee or as an independent contractor 
relationship. See Clackamas, 538 U.S. at 448-49; EEOC Compl. Man. at§ 2-III(A)(l). 
Furthermore, when examining the factors relevant to determining control, USCIS must assess and 
weigh each actual factor itself as it exists or will exist and not the claimed employer's right to influence 
or change that factor, unless specifically provided for by the common-law test. See Darden, 503 U.S. at 
323-24. For example, while the assignment of additional projects is dependent on who has the right to 
assign them, it is the actual source of the instrumentalities and tools that must be examined, and not 
who has the right to provide the tools required to complete an assigned project. See id. at 323. 
Lastly, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive." /d. at 451 (quoting Darden, 503 U.S. at 324). 
As such, this issue will be remanded to the Director and she should request additional evidence to 
clarify whether the Beneficiary was employed by a qualifying organization for one continuous year 
of full-time employment within the three years preceding the application for admission to the United 
States based upon the factors and analysis noted above. 
III. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
Although the Director's decision will be withdrawn, the record ~as presently constituted does not 
establish that the Beneficiary was employed abroad in a primarily managerial capacity. The 
Petitioner does not claim that the Beneficiary has been employed in an executive capacity. 
Therefore, we restrict our analysis to whether the Beneficiary has been employed in a managerial 
capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) manages the organization, 1 or a department, subdivision, function, or 
component of the organization; 
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(b)(6)
Matter of M-US, Inc. 
(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. 
A. Evidence of Record 
The Petitioner stated that the Beneficiary was employed abroad by its foreign affiliate, 
in Poland as a program manager beginning in July 22, 2014. The Petitioner has 
stated throughout the record that the Beneficiary was responsible for overseeing three project 
managers and several project-based indirect reports. 
The Petitioner submitted a list of the Beneficiary's duties as follows (verbatim): 
• 50% of total time - Managing, delegating, and evaluating the day-to-day tasks and 
functions of his numerous (60-100) project-based development team members, 
including daily goal setting, perfqrmance analysis, and personnel-related matters; 
• 20% of total time - Managing the day-to-day tasks and performance of his 3 direct 
reports (Project Managers), including the delegation of daily tasks and duties, 
conducting performance analysis, and making personnel-related decisions including 
hiring and firing; 
• 20% of total time- Managing crucial mobile delivery accounts and directing business 
development efforts, including the management of direct client communication, 
consultation with clients regarding deliverable solutions and requirements, and 
overseeing launch and delivery efforts to ensure customer satisfaction; and 
• 1 0% of total time - Managing, coaching, and men to ring lateral stakeholders, 
including employees from Market Sector. 
The Petitioner also descri,bed the Beneficiary's foreign employment as described above in the 
Evidence of Record subsection in the previous section of this decision. 
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Matter of M-US, Inc. 
The Petitioner submitted organizational charts depicting the Beneficiary overseeing subordinate 
project managers along with resumes, job descriptions, and payroll records for the claimed 
subordinate employees. In its supporting statement, the Petitioner stated that, "[the Beneficiary] 
supervises and controls the work ofthree (3) other professional and managerial employees on a daily 
basis. In addition, he is charged with managing and controlling the work of project teams that are 
comprised of 60+ professional team leaders, senior developers, quality assurance managers, team 
leads, and developers of various seniority levels-these reports are indirect and [the Beneficiary] 
manages their daily tasks on a project-by-project basis. He also manages an essential function of the 
company by designing, developing, and delivering mobile solutions for some of largest 
· clients such as and " 
B. Analysis 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The Petitioner's description 
of the job duties must clearly describe the duties to be performed by the Beneficiary and indicate 
whethe,r such duties are in a managerial or executive capacity. !d. 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See sections 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. 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) of the Act; 8 C.F.R. 
§ 214.2(1)(1 )(ii)(B)( 4). If a petitioner claims that a beneficiary directly supervises other employees, 
those subordinate employees must be supervisory, professional, or managerial, and the beneficiary 
must have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. Sections 101(a)(44)(A)(ii)-(iii) ofthe Act; 8 C.F.R. §§ 214.2(l)(l)(ii)(B)(2)-(J). . 
11 
Matter of M-US, Inc. 
We acknowledge the Petitioner's assertions regarding the Beneficiary's role as a personnel and 
function manager with the foreign entity. However, the Petitioner has not submitted sufficient 
evidence of the Beneficiary's supervision of employees or his duties managing and controlling an 
essential function of the organization. Specifically, the Petitioner has not submitted evidence that 
the Beneficiary managed or controlled the work of subordinate professionals, that he had the 
authority to make personnel decisions including hiring and firing, that he oversaw indirectly 60+ 
professional team leaders on a project basis, or that he had authority over the foreign entity's clients 
or contracts. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
Accordingly, we will remand the matter to the Director, who should request any additional evidence 
deemed warranted to address the deficiencies noted with respect to determining whether the 
Beneficiary was employed primarily as either a function manager or a personnel manager with the 
foreign entity. 
IV. CONCLUSION 
Based on the foregoing discussion, although the Director's decision will be withdrawn, the evidence 
of record as presently constituted does not establish the Beneficiary's eligibility for the benefit 
sought. Accordingly, we will remand this matter, to the Director for further action and entry of a new 
decision. 
ORDER: The decision of the Director, California Service Center, is withdrawn. The matter is 
remanded to the Director, California Service Center, for further proceedings 
consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of M-US, Inc., ID# 18246 (AAO Sept. 15, 2016) 
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