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AAO Reverses a Bad Decision from the Texas Service Center for a Multinational Software Executive/Project Manager

By Joseph P. Whalen (August 7, 2014)

Introduction

As I read through this AAO non-precedent decision involving the E1-3

multinational executive or manager immigrant visa category, in the case of

a computer software development and consultancy business’ I-140 petition

for a “Project Manager”, one part of it in particular just reached out and

grabbed my attention. On the one hand, I was somewhat taken aback by

what I perceive may have likely happened during the initial adjudication.

On the other hand, I was glad to see that AAO spotted it and reversed it.

The “it” I am stumbling my way towards is what I would have to describe as

a “Catch 22” situation or as a “sucker-punch” coupled with “jumping to

conclusions” or “mischaracterizing based on flawed profiling” taken “out of

context”. That bothers me. Does it bother you?

An Unacceptable Adjudication Approach

The offensive, repugnant, and reprehensible behavior was not

described as such by AAO. I just did that. I have highlighted various

passages in a “cut-n-pasted” version of the body of the text of the decision

on the following pages to make my point. You can be the judge of how well I

did on that aspect. Anyway, it seems that an adjudicator once again asked

for greater detail via a request for evidence (RFE) and then used it against

the petitioner in a denial. In addition, the adjudicator appears to have

relied upon flawed assumptions based on an irrelevant fact as to the

beneficiary’s initial entry as an H-1B “specialty occupation worker”. If one

brings that irrelevant factoid along while performing a flawed analysis

then, it is no wonder that the relevant critical factors and key elements

were not assessed from the proper perspective. In other words, some of

the information relied upon by the adjudicator was analyzed outside of its

proper context. Riddle me this Batman: What does the beneficiary’s H-1B

entry have to do with the actual job duties performed in a previous position

held overseas? Think about it. It will make more sense shortly.

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A Clear Warning Sign of a Potential Endemic Problem

That particular adjudicator had initial success in issuing a denial in this particular case. I am wondering if that particular case was subjected to any form of Supervisory Review or not. I definitely hope that that initial decision did NOT get any form of “approval” following a Supervisory Review. I also hope that it failed any Quality Assurance Review it may have been subjected to. If flawed decisions like this are routinely slipping through supervisory and/or quality assurance reviews then that would be a serious systemic problem. Let us hope that this case represents an aberration rather than a “norm”. Let us also hope that the unclear thinking during that underlying adjudication was an aberration as well. Lastly, IF similar poor quality adjudications are not tightly grouped, finite, and/or isolated THEN there may be a wider training issue involved. IF a training issue is at the heart of the problem THEN it may be time to revise the training materials and perhaps the training methodology and approach. Less CYA in favor of more substantive and thought provoking methods.

The July 15, 2014, AAO Sustained Appeal Decision ______ NON-PRECEDENT DECISION

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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is

now before the Administrative Appeals Office (AAO) on appeal. The decis ion of the director will be

withdrawn and the appeal will be sustained.

The petitioner is a multinational corporation that operates as a computer software development and

consultancy business. The petitioner seeks to employ the beneficiary in the United States in the pos ition of

project manager. 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.

Section 203(b) of the Act states in pertinent part:

(1) Priority Workers. --Visas shall first be made available ... to qualif ied 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 aff iliate 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.

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The language of the statute is specific in limiting this provis ion to only those executives and managers who

have previous ly 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 I-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.

After reviewing the petitioner's original supporting evidence as well as evidence that was provided in response

to a request for evidence (RFE), the director determined that the petitioner failed to establish that the

beneficiary was employed abroad in a qualifying managerial or executive capacity and therefore issued a

decision, dated December 11, 2013, denying the petition. In issuing the adverse decision, the director took into

account [of] [sic] the fact that the beneficiary entered the United States in the H-1B nonimmigrant category,

rather than as an L-1A intracompany transferee, finding this to be an indicator as to the beneficiary's

employment capacity in his former position with the foreign entity. The director also found that the

beneficiary's former employment included some non-qualifying job duties, which contributed to the adverse

conclusion.

Stylistic Notes and My Approach to Analysis I have added highlighting to the key portions, in the copied pages, above

and below, that have influenced my opinions expressed in this article. For instance, the beneficiary was initially brought to the U.S. as an H-1B rather than as an L1-A. True that that can be meaningful if not explained and justified. It seems from the reaction from AAO, that the RFE response was successful in overcoming that slight quirk as a matter of law but that the center adjudicator just wouldn’t let it go. Initial gut reactions are hard to release.

That being said, it is imperative to view each case individually, and only

loosely use “profiling” in a broad stroke manner. I admit that some amount of profiling is natural, and is normally effective to initially steer a case review so as to cover the major points quickly. In those cases where lingering doubts and articulable concerns remain, an RFE is usually the best approach. Once the response is received, the new evidence and/or arguments should be assessed against the initial concerns as well as any new areas of concern that the new evidence may bring forward. When assessing the response against the initial concerns, one must step back mentally in order to keep a broad perspective and an open mind. An adjudicator must be open to whatever is offered and view it on its own terms and merit. An adjudicator cannot be locked into a rigid and limited spectrum of “acceptable evidence” in their own mind or within their individual limited experiences. If something novel comes along, talk to other adjudicators, supervisors, or counsel, and consider certification to AAO. Novel or complex questions of law or fact, and matters of first impression are all suitable for AAO certification under 8 CFR § 103.4(b).

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______ NON-PRECEDENT DECISION

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On appeal, counsel submits an appellate brief disputing the director's decision. Counsel questions the director's

reliance on the beneficiary's U.S. entry in the H-1B nonimmigrant visa category as a proper indicator of the

beneficiary's employment capacity in his former position with the foreign entity. Counsel also expounds on the

beneficiary's prior job duties, the organizational structure within which he carried out those job duties, and the

level of discretionary authority the beneficiary had over work matters and the professional personnel who

reported to him. Counsel challenges the director's implication that the beneficiary's knowledge of information

technology tools is an indicator that the beneficiary's time in his former employment with the foreign entity

was devoted primarily to carrying out non-qualifying operational tasks. Lastly, counsel explains why the

original job description, which the petitioner provided in the initial supporting statement, dated March 29,

2013, was different from the subsequent job description, which was included in the petitioner's RFE response

statement, dated September 4, 2013. Specifically, counsel asserts that the second job description was

intended to contain considerably greater detail based on the RFE instructions, which expressly indicated

that one of the goals in issuing the RFE was to elicit further, more detailed information about the specific

job duties the beneficiary performed during his employment with the foreign entity.

In general, when examining the executive or managerial capacity of the beneficiary, we consider the totality of

the record; we do not limit our review to the job description of the position(s) in question. Therefore, while the

director was correct in placing emphasis on the description of the beneficiary former employment with the

foreign entity, we find that further analysis of other elements is required and that the benefic iary's job

description should have been assessed in light of the organizational makeup and complexity of the division

within which the beneficiary was placed in his prior pos ition with the foreign entity. Here, having given

thorough consideration to the beneficiary's job duties in light of these other highly relevant factors, we find that

the record in its totality contains sufficient evidence and information to overcome the director's adverse

determination.

While it is likely that the beneficiary did not allocate 100% of his time to managerial- level tasks, the petitioner

provided sufficient evidence to establish that the non-qualifying tasks the beneficiary performed were only

incidental to, rather than the focal point of, the position in question. 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 Matter of Church Scientology

International, 19 I&N Dec. 593, 604 (Comm. 1988).

Contrary to the director's finding, the record in the present matter indicates that the beneficiary's placement

within the former employer's organizational hierarchy, the professional employees whose work he supervised,

and the management-level job duties he performed all indicate that beneficiary more likely than not allocated

his time primarily to the performance of tasks within a qualifying managerial capacity, and that the petitioner

has therefore provided sufficient documentation to meet the preponderance of the evidence standard.

Accordingly, the director's decision must 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 sustained that burden.

ORDER: The appeal is sustained.

A copy of the AAO Decision as it appears posted is appended below.

That’s my two cents, for now.

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AAO’s Non-Precedent is found at: JUL152014_01B4203.pdf

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