dismissed L-1A Case: Agricultural Trade

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-V-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 28, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an agricultural commodity export and trading company, seeks to temporarily employ 
the Beneficiary as its vice president - sales under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 
8 U.S.C. § 1101(a)(l5)(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 of the Vermont Service Center denied the petition, concluding that the record did not 
establish, as required, that ( 1) the Beneficiary had been employed in a managerial or executive 
capacity for the foreign entity, and (2) the new office would support a managerial or executive 
position within one year after approval of the petition. 
On appeal, the Petitioner submits a statement asserting that the Director: (1) improperly classified 
the Petitioner as a "new office"; (2) erred when finding that the Petitioner could not support the 
Beneficiary in a qualifying capacity within one year and further in determining that the Beneficiary's 
position did not satisfy the statutory definition of managerial capacity; and (3) erred when finding 
that the Beneficiary's position at the foreign entity did not satisfy the statutory definition of 
managerial capacity. The Petitioner asserts that it will submit a brief and additional evidence further 
addressing the Director's errors within 30 days of filing the appeal. To date, however, the record 
shows the Petitioner has not submitted a brief or additional evidence, and it will be considered 
complete as currently constituted. 
Upon de novo review, we will dismiss the appeal. 
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. 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 
Matter ofT- V-, LLC 
thereof in a managerial, executive, or specialized knowledge capacity. Section 101(a)(l5)(L) ofthe 
Act. 
The term "new office" refers to an organization which has been doing business in the United States 
for less than one year. 8 C.F.R. § 214.2(1)(1)(ii)(F). If the Form I-129, Petition for a Nonimmigrant 
Worker, indicates that the Beneficiary is coming to the United States in L-1A status to open or to be 
employed in a new office, the Petitioner must submit evidence to demonstrate that the new office 
will be able to support a managerial or executive position within one year. This evidence includes 
information regarding the new office's physical premises, the proposed nature and scope of the 
entity, its organizational structure, its financial goals, and the size of the U.S. investment. See 
generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. NEW OFFICE 
The Petitioner initially checked the box on the Form 1-129, L Supplement, indicating that the 
Beneficiary is coming to the United States to open a new office. The Petitioner also stated on the 
Form 1-129 that the intended dates of employment for the Beneficiary under this petition are from 
May 1, 2016, to May 1, 2021. The Director in a request for evidence (RFE) noted that a beneficiary 
coming to the United States to open a new office in the United States is limited to one year in L-1 
classification. 
In response to the Director's RFE, the Petitioner submitted an amended page to the initial petition 
checking the box to indicate that the Beneficiary is not coming to the United States to open a new 
office. The Petitioner asserted that the U.S. office has already been opened, staffed, and has been 
operating since April 2016. The record includes evidence that the Petitioner was issued grain and 
agricultural dealer licenses in September 2016, and that the Petitioner's unemployment tax account 
registration was confirmed by the Georgia state agency on August 30, 2016. 
Although the record shows that the Petitioner was organized in the State of Georgia on November 
17, 2014, the Petitioner began "doing business," no earlier than April 2016. "Doing business,'' is 
defined as the regular, systematic, and continuous provision of goods or services. 8 C.F.R. 
§ 214.2(1)(14)(ii)(A) and 8 C.F.R. § 214.2(l)(l)(ii)(H). The petition in this matter was filed on May 
19, 2016, and at that time the Petitioner had been doing business for less than one year. 
Accordingly, we agree with the Director's determination that the Petitioner was a "new office" when 
the petition was filed. 8 C.F.R. § 214.2(1)(1)(ii)(F). 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
To establish that the new office, within one year of the approval of the petition, will support a 
managerial or executive position, the Petitioner must submit information regarding the proposed 
nature of the office describing the scope of the entity, its organizational structure, and its financial 
goals; the size of the United States investment and the financial ability of the foreign entity to 
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Matter ofT- V-, LLC 
remunerate the beneficiary and to commence doing business in the United States; and the 
organizational structure ofthe foreign entity. 8 C.F.R. § 214.2(l)(3)(v)(C). 
The new office regulations recognize that a designated manager or executive responsible for setting 
up operations will be engaged in a variety of low-level activities not normally performed by 
employees at the executive or managerial level and that often the full range of managerial 
responsibility cannot be performed in that first year. However, the Petitioner's evidence in support 
of a new office petition should demonstrate a realistic expectation that the enterprise is prepared to 
commence business operations and rapidly expand as it moves away from the developmental stage 
to full operations, where there would be an actual need for a manager or executive who will 
primarily perform qualifying duties. 
In an affidavit submitted by a member of the Petitioner's limited liability company, dated May 16, 
2016, the affiant provided a description of the Beneficiary's proposed position as follows: 
[The Beneficiary] will be the Vice-President of sales and expansion of [the Petitioner] 
in the United States, and South American market, such as Mexico, Argentina and 
Brazil. Headquarters for the entire operation will be in Albany, Georgia, United 
States. He will be the manager of 12 sales people. He will be responsible for sales of 
agro-commodities, specializing in peanuts. Duties include setting up the U.S. 
headquarters in order to facilitate the transition into these markets. [The Beneficiary] 
will conduct all hiring and firing of staff in Albany Georgia, and those traveling 
worldwide for sales purposes. [The Beneficiary] will continue his duties as the 
Vice-President of [ s ]ales and expansion for parent company [the parent company]. 
In response to the Director's RFE, the Petitioner emphasized that the Beneficiary's duties "entail[] 
managing all sales in the Americas and Europe, as well as managing the General Managers of each 
location" and that "opening of [the U.S.] office is not his primary purpose for coming to the U.S. 
under the L-lA visa." The Petitioner noted its intent for the Beneficiary to be based in the United 
States and stated that the managers of each office in the Americas and Europe will report to and 
operate under the Beneficiary's direction. The Petitioner requested approval of the petition with a 
validity period of seven years. 
The Director found the record insufficient to demonstrate how the new U.S. entity will grow and 
expand so that it will support an L-1 manager or executive within one year of approval. 
We first note that a nonimmigrant intracompany transferee visa is not an entrepreneurial visa 
classification allowing a beneficiary a prolonged stay in the United States in a non-managerial or 
non-executive capacity to start up a new business or to establish a base of operations. Rather, the 
regulations allow for a one-year period for the U.S. entity to commence doing business and develop 
to the point that it will support a beneficiary in a qualifying managerial or executive position. 
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Matter q_lT-V-, LLC 
The record in this matter does not include sufficient evidence that the U.S. company will support the 
Beneficiary in a managerial or executive position within one year of approval as required by 
regulation. See 8 C.F.R. § 214.2(l)(3)(v). The record does not include a business plan or a proposed 
hiring plan. The Petitioner did not explain in detail the operations and expectations of the new 
office, did not describe the U.S. company's proposed positions in detail, did not indicate \vhether 
any employees would be employed part-time or full-time, and did not explain how the Beneficiary 
would be relieved from performing non-qualifying tasks. The Petitioner did not explain how or if 
the foreign entity and its employees would support the Beneficiary in his managerial or executive 
capacity. 
As the record does not include sufficient evidence on this issue and no additional evidence or 
argument was submitted on appeal to overcome the Director's decision, the appeal will be dismissed. 
IV. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The Director denied the petition based, in part, on a finding that the record did not establish that the 
foreign entity employed the Beneficiary for one continuous year in the three-year period preceding 
the filing of the petition in an executive or managerial capacity. As the Petitioner does not claim that 
the Beneficiary is employed in an executive capacity, we limit our analysis to whether the 
Beneficiary is employed in a managerial capacity for the foreign entity. 
The term "managerial capacity" is defined as "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 \Vork 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. 
Section 101(a)(44)(A) of the Act. Further, "[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." !d. 
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Matter ofT- V-, LLC 
In response to the Director's RFE, the Petitioner provided a letter from the foreign entity's president 
commending the Beneficiary's skills, hard work, and managerial decisions. He also indicated 
generally that the Beneficiary performs trading and sales staff management, has the authority to hire, 
fire, and promote his subordinates, and that he also performs trader training and development. The 
president added that the Beneficiary handles subordinate staff, financial crises, daily performance 
management, and trading and development of the company. The record also includes a copy of the 
foreign entity's organizational chart, and one-line descriptions of the duties of the Beneficiary's 
subordinates. On appeal, the Petitioner asserts that the Beneficiary's position satisfies the definition 
of a 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. 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 10l(a)(44)(A)(iv) of the 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. 8 C.F.R. § 214.2(1)(1 )(ii)(B)(3). 
Although a beneficiary is not required to supervise personnel, if a petitioner claims that a 
beneficiary's duties involve supervising employees, a petitioner must establish that the subordinate 
employees are supervisory, professional, or managerial.' See section 101(a)(44)(A)(ii) of the Act. 
The record in this matter does not include sufficient information regarding the Beneficiary's duties 
and those of his subordinates to conclude that he is primarily a personnel manager for the foreign 
entity. For example, although the foreign entity's president claims that the Beneficiary's duties 
involve performance management, he does not allocate the Beneficiary's time spent on this activity 
or otherwise detail the daily duties that will engage the Beneficiary. Additionally, the brief 
descriptions of duties for the Beneficiary's subordinates do not establish that the positions are 
primarily managerial, supervisory, or professional. 
Similarly, the record does not establish that the Beneficiary is a function manager. Although the 
Petitioner does not appear to claim that the Beneficiary will manage an essential function, we note 
that to support such a claim the Petitioner must clearly describe the duties to be performed in 
managing the essential function, or more specifically, identify the function with specificity, 
1 In evaluating whether a beneficiary manages professional employees, we evaluate whether the subordinate positions 
require a baccalaureate degree as a minimum for entry into the field of endeavor. CY, 8 C.F.R. § 204.5(k)(2) (defining 
"profession'' to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum 
requirement for entry into the occupation"). Section I 0 I (a)(32) of the Act, states that "[t]he term proj(:ssion shall 
include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." Therefore, we focus on the level of education required by the 
position, rather than the degree held by subordinate employee. The possession of a bachelor's degree by a subordinate 
employee does not automatically lead to the conclusion that an employee is employed in a professional capacity. 
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Maller of T-V-, LLC 
articulate the essential nature of the function, and establish the proportion of a beneficiary's daily 
duties attributed to managing the essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, a 
petitioner's description of a beneficiary's daily duties must demonstrate that the beneficiary will 
manage the function rather than perform duties related to the function. Again, the record does not 
include sufficient information describing the daily duties the Beneficiary performs in his position at 
the foreign entity. 
Without additional detail we cannot conclude that the Beneficiary ' s role at the foreign entity is in a 
managerial capacity. As the Petitioner does not provide additional evidence on appeal to support its 
claim that the Beneficiary is employed in a managerial capacity for the foreign entity, it has not 
overcome the Director's decision on this issue. For this additional reason, the appeal will be 
dismissed. 
V. QUALIFYING RELATIONSHIP 
In addition, while not addressed by the Director, we find that the record does not establish a 
qualifying relationship between the Petitioner and the foreign entity. To establish a "qualifying 
relationship" under the Act and the regulations, a petitioner must show that the beneficiary's foreign 
employer and 
the proposed U.S. employer are the same employer (i.e. one entity with "branch" 
offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 
101(a)(15)(L) ofthe Act; 8 C.F.R. § 214.2(1). 
The Petitioner stated on the Form 1-129 that it is "a 100% owned subsidiary of [the foreign entity] by 
way of common ownership of substantially all of the stock of both companies by and 
" A qualifying subsidiary is defined , in part, as "a firm, corporation, or other legal 
entity of which a parent owns, directly or indirectly, more than half of the entity and controls the 
entity; or owns, directly or indirectly, half of the entity and controls the entity." 8 C.F.R. 
§ 214.2(1)(1 )(ii)(K). In this matter, the foreign entity does not own the Petitioner, so the Petitioner is 
not the foreign entity's subsidiary. 
The record shows and own the Petitioner. with owmng 
75 percent and owning 25 percent. These same two individuals each own 49.95 
percent of the foreign entity , with five other individuals each owning .02 percent of the foreign 
entity. If an individual owns and controls the Petitioner and the foreign entity, then the companies 
will be deemed to be affiliates under the qualifying organization definition even if the entities have 
multiple owners. See 8 C.F.R. § 214.2(1)(1)(ii)(L)(l)(defining "affiliate"). However, 
the Petitioner's majority owner, does not own a majority interest in the foreign entity , so he 
does not exercise control of the foreign entity. Nor does the same group of individuals own both the 
Petitioner and the foreign entity, with each individual owning and controlling approximately the 
same share or proportion of each entity. See 8 C.F.R. § 214.2(l)(l)(ii)(L)(2). Rather, two 
individuals own the foreign entity and seven shareholders own the petitioning entity. 
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Matter ofT- V-. LLC 
While the Petitioner suggests that together own 100 percent of the 
Petitioner and nearly 100 percent of the foreign entity, we do not accept a combination of individual 
shareholders as a single entity, so that the group may claim majority ownership, unless the group 
members have been shown to be legally bound together as a unit within the company by voting 
agreements or proxies. The Petitioner has not provided evidence that these two shareholders are 
legally bound together as a unit. Therefore, the record does not establish that the two entities have 
an affiliate relationship. 
Thus, the record does not demonstrate a qualifying relationship between the two entities as defined 
in the regulations. For this additional reason, the petition cannot be approved. 
VI. CONCLUSION 
The appeal is dismissed because the record does not 
include sufficient evidence to establish that: (1) 
within one year of the approval of the petition, the U.S. company will support a managerial or 
executive position; and (2) the foreign entity employed the Beneficiary for one continuous year in 
the three-year period preceding the tiling of the petition in an executive or managerial capacity. In 
addition, the record does not establish that the Petitioner has a qualifying relationship with the 
Beneficiary's foreign employer. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-V-. LLC, ID# 458921 (AAO June 28, 2017)