dismissed L-1A Case: Automobile Parts

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-E-A-S-P-T- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 12,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an automobile parts dealer, seeks to temporarily employ the Beneficiary as general 
manager of its new office under the L-1 A nonimmigrant classification for intracompany transferees. 
See Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 8 U.S.C. § 110l(a)(l5)(L). 
TheL-IA 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 has been employed abroad in a managerial or 
executive capacity; and (2) the new office in the United States would be able to support a managerial or 
executive position within one year of approval of the petition. 
The matter is now before us on appeal. On appeaL the Petitioner asserts that it has met its burden of 
proof, and that the Director erred by finding otherwise. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for theL-IA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 8 C.F.R. § 214.2(1)(3)(v)(B). 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 or executive capacity. !d. 
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 must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose 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). 
Matter ofG-E-A-S-P-T- LLC 
II. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary has been employed 
abroad in a managerial capacity. We will restrict our analysis to managerial capacity because the 
Petitioner does not claim that its foreign parent company employed the Beneficiary abroad in an 
executive capacity. 
A managerial capacity is an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function. or component of the organization, 
and exercises discretion over the day-to-day operations of the activity or function for which the 
employee has authority. A personnel manager supervises and controls the work of other 
supervisory, professional, or managerial employees; the duties of a first-line supervisor are not 
considered managerial unless the employees supervised are professional. A personnel manager must 
also have the authority to execute or recommend personnel actions such as hiring. firing, and 
promotions. A function manager need not directly supervise other employees, but must manage an 
essential function within the organization, or a department or subdivision of the organization, and 
function at a senior level within the organizational hierarchy or with respect to the function 
managed. Section 101(a)(44)(A) ofthe Act. 
The Petitioner stated that the Beneficiary served as a function manager overseas, overseeing the 
essential function of "the sale of aftermarket automotive parts.'' The director of the foreign parent 
company stated: 
[The Beneficiary] has been responsible for managing and overseeing the entire 
operations of our company ... overseeing and directing the work of our Marketing 
Manager, Sales Manager, salesmen, storekeeper, clerk and driver. He has the 
authority to hire, fire and take all other personnel actions with regards to these 
employees. [The Beneficiary] is responsible for fommlating policies, managing daily 
operations, and planning the use of materials and human resources. He also sets staff 
schedules, assigns work, and ensures that projects are completed. He also manages 
the supply chain with sellers, oversees the maintenance of the inventory levels in the 
warehouse for over twenty thousand products, and formulates the trend pattem based 
upon market interaction with existing and prospective buyers. His recommendations 
are used as [the] basis for maintaining inventory of auto parts. 
The Petitioner argues on appeal that it has submitted enough information and evidence to establish, 
by a preponderance of the evidence, that the foreign parent company employed the Beneficiary in 
the capacity of a function manager. The totality of the evidence supports this conclusion. The 
Petitioner has corroborated the Beneficiary's em-ployment and that of an adequate support staff to 
relieve the Beneficiary from performing operational tasks such as sales, inventory control, and 
delivery. The subordinates' job descriptions include enough information to identify their 
responsibilities and core tasks. For example, each of the three sales personnel has a separate sphere 
of responsibility. The Director did not identify any gaps in the record that would support a 
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Matter ofG-E-A-S-P-T- LLC 
conclusion that a significant operational function rested with the Beneficiary due to the lack of other 
workers to perform that function. The presence of an intermediary sales manager means that the 
Beneficiary was not directly supervising the sales workers. 
The record appears to support a finding that the foreign parent company employed the Beneficiary 
abroad in a managerial capacity during the relevant statutory period. We withdraw the Director's 
finding to the contrary. But a second ground for denial remains. 
III. NEW OFFICE 
A petitioner seeking to employ a beneficiary as a manager or executive of a new office must 
establish that the new office will support an executive or managerial position within one year of 
approval of the petition. The Petitioner must establish the proposed nature of the office, describing 
its scope, organizational structure, and financial goals; the size of the United States investment and 
the foreign entity's financial ability to remunerate the beneficiary and to commence doing business 
in the United States; and the foreign entity's organizational structure. 8 C.F.R. § 214.2(1)(3)(v)(C). 
When a new business is first established and commences operations, the 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. The 
"new office" regulations allow a newly established petitioner one year to develop to a point that it 
can support the employment of a beneficiary in a primarily managerial or executive position. 
A petitioner requesting new office treatment must show that it is prepared to commence doing 
business immediately upon approval so that it will support a manager or executive within the one­
year timeframe. This evidence should demonstrate a realistic expectation that the enterprise will 
succeed 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. See generally 8 C.F.R. § 214.2(l)(3)(v). The petitioner must describe the nature of its 
business, its proposed organizational structure and financial goals. and submit evidence to show that 
it has the financial ability to remunerate the beneficiary and commence doing business in the United 
States. !d. 
The Petitioner readily meets the definition of a new office, having filed its certificate of formation 
with the State of New Jersey three weeks before the petition's filing date. 
A. Staffing 
The Petitioner has asserted that the Beneficiary will work in a managerial capacity, rather than an 
executive capacity. The Director found that the Petitioner had not established that the company 
would support a managerial position within one year of approval of the petition. On appeaL the 
Petitioner asserts that its "foreign parent company has a proven track record of success" which the 
Matter ofG-E-A-S-P-T- LLC 
Director should have taken into account. The Petitioner also lists the steps it has taken toward 
commencing operations, such as renting warehouse space and purchasing inventory. These 
assertions, however, do not directly address the Director's concerns. The Director denied the 
petition based on concerns about the company's projected staffing. While the appeal does touch on 
the issue of staffing, it adds no new information to the record in this respect. 
The Petitioner's business plan indicated that the Beneficiary "will be responsible for all operation of 
the company including": 
• Ensuring the company is financially sound 
• Procurement and purchase of products 
• Managing sales, employees, inventory, and accounts 
• Managing the day to day operations of the business 
• Developing marketing strategies 
• Implementing the business role model as set 
• All other duties directed by him 
The Petitioner's business plan showed three anticipated hires during its first year of operations: the 
Beneficiary, a sales representative, and a warehouse employee to handle logistics. The Petitioner did 
not further specify the duties that these two subordinate employees would perform. 
The Director requested additional information about the beneficiary's intended duties and the 
company's planned staffing. In response, the Petitioner stated that the Beneficiary '"will not engage 
in any of the sales or distribution of the products, as he will be hiring and managing individuals 
charged with these responsibilities." Specifically, "[t]he Petitioner's salesman and logistics 
employee will be responsible for selling the company's products and maintaining and distributing 
the company's inventory.'' This broad and general assertion does not address the Director's 
concerns, and it does not show who would perform other duties relating, for instance. to marketing 
and clerical functions. In the absence of this information, it cannot suffice for the Petitioner simply 
to assert that the Beneficiary will manage, rather than perform. those functions. 
In the denial notice, the Director acknowledged that the Beneficiary would have "discretion and 
authority" over the petitioning entity because he would hold "the most senior position"' there. The 
Director found, however, that the Petitioner had not established that the Beneficiary will primarily 
manage, rather than perform, an essential function for the company. The Director also found that the 
Petitioner's business plan did not demonstrate that the company would support a managerial position 
within a year of the petition's approval. 
On appeal, the Petitioner repeats the assetiion that the subordinate staff would perform enough 
operational tasks that the Beneficiary would not have to primarily perform them himself. 
The statutory definition of "managerial capacity" allows for both "personnel managers'' and 
"function managers." See sections 10l(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
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Matter ofG-E-A-S-P-T- LLC 
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 10l(a)(44)(A) of the Act; 8 C.f.R. 
§ 214.2(l)(l)(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 tire those employees, or recommend those actions, and take other 
personnel actions. Sections 10l(a)(44)(A)(ii)-(iii) ofthe Act; 8 C.F.R. §§ 214.2(l)(l)(ii)(B)(2)-(3). 
Even five years into the Petitioner's projections, there would be no supervisors or managers between 
the Beneficiary and the sales and logistics staff. Therefore, the Beneficiary would be the first-line 
supervisor of all subordinate workers. 
To determine whether the Beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. C.Y. 8 C.F.R. § 204.5(k)(2) (defining "profession'' to mean "any occupation for which a 
United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry 
into the occupation"). Section 10l(a)(32) of the Act states that "[t]he termprc~f'ession shall include 
but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary 
or secondary schools, colleges, academies, or seminaries." 
The Petitioner did not claim or establish that the salesperson or warehouse worker would be a 
professional. The Beneficiary's direct supervision of sales and logistics staff would not qualify him 
as a personnel manager. 
Furthermore, the Petitioner planned to hire an administrative worker in its third year of operations, at 
a salary of $20,000 per year. The Petitioner did not say who would perform the relevant 
administrative tasks before tne third year. 
The Petitioner has asserted that in the United States, as he did abroad. the Beneficiary would manage 
the essential function of sales of automobile parts. If a petitioner claims that a beneficiary will 
manage an essential function, it must clearly describe the duties to be performed in managing the 
essential function. In addition, the petitioner must demonstrate that ''(1) the function is a clearly 
defined activity; (2) the function is 'essential,' i.e., core to the organization; (3) the beneficiary will 
primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level 
within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary 
will exercise discretion over the function's day-to-day operations." Matter (~l G- Inc., Adopted 
Decision 2017-05 (AAO Nov. 8, 2017). 
In this matter, the Petitioner has identified the essential function but has not established that the 
Beneficiary would primarily manage, rather than perform, that function. While the foreign parent 
company had layers of management and supervision below the Beneficiary, the Petitioner plans to 
employ only two subordinates during the first year of operation. The Petitioner has not provided 
Matter ofG-E-A-S-P-T- LLC 
enough information about the positions to establish that one sales worker and one logistics worker 
would relieve the Beneficiary from having to primarily perform non-qualifying day-to-day business 
functions. 
B. Finances 
Beyond the staffing issues which formed the core of the basis for denial, there are unanswered 
questions relating to the Petitioner's finances. 
The Petitioner's business plan indicated that the foreign parent company "will invest a total of 
$200,000 into the operations, with an estimated $114,200 being immediately invested into startup 
related expenses and the remainder being used to cover overhead expenditures incurred under the 
normal course of operations." This information conflicts with figures from the same business plan: 
Total Requirements 
Total Startup Expenses 
Total Startup Assets 
Total Requirements 
$109,700 
24,500 
134,200 
Planned Investment 
Owner 
Investor 
Total Startup Funding 
$34,200 
100,000 
134,200 
The business plan indicated that the Petitioner already had $20,000 in cash on hand. The remaining 
$114,200 in total requirements matches the Petitioner's estimate for the immediate investment 
required. The conflict arises because the table plainly divides the "planned investment" into two 
distinct sources - "owner" and "investor." There is no possible "owner'' other than the foreign 
parent company; it is the only member of the petitioning U.S. limited liability company, and it holds 
a 100% interest in the U.S. company. Therefore, the foreign parent company must be the ''owner'' 
rather than the "investor." The Petitioner did not identify the "investor'' who would provide the 
remaining $100,000. If there is no investor, and the foreign parent company is the sole source of 
funding, then the business plan contains a major error which undermines its reliability. 
The business plan included "financial projections [which] reflect the estimated future performance of 
the company over a five year period based upon its sales levels in comparable markets outside of the 
United States." The Petitioner anticipated over $2 million in revenue and over $170,000 in net 
income during its first year, "based upon [the parent company's] sales levels in comparable markets 
outside of the United States." The business plan further indicated that the U.S. company would 
begin its first year of operations with a cash balance of $100,000, most of which was not yet in the 
Petitioner's hands. 
In a request for evidence, the Director stated that the Petitioner's business plan "forecast the 
expansion of [the] business only in the most general terms with no documentation linked to 
timetables and actual business benchmarks over the course of [the] first year." The Director 
requested documentation showing that the foreign parent company had invested the needed capital 
or made a specific commitment to do so. The Director also instructed the Petitioner to identify the 
documentary evidence on which it based its sales and revenue projections. 
Matter ofG-E-A-S-P-T- LLC 
In response, the Petitioner stated that the Director had requested information beyond what the 
regulations require. The Petitioner, however, does not discharge its burden of proof simply by 
submitting the required initial evidence, and there is no prohibition on requesting evidence beyond 
what the regulations specify. If the Petitioner has submitted all required initial evidence but the 
evidence submitted does not establish eligibility, U.S. Citizenship and Immigration Services has the 
discretion to request more information or evidence from the petitioner. See 8 C.F.R. 
§ 103.2(b)(8)(iii). 
The Petitioner stated that the initial submission showed that the "foreign parent corporation has a 
proven track record of success," and "cash deposits of more than $113,000:' The Petitioner repeated 
figures from the business plan, but the Director had found the business plan to lack important details. 
The Petitioner cannot remedy this deficiency by referring back to the business plan. 
The Petitioner cited a bank statement as evidence that "the foreign parent company invested an 
initial $25,000 on December 15, 2016." A bank statement showed a $25,000 balance on December 
16, but this balance was the result of four separate deposit transactions, one of which was a $19,970 
wire transfer from the parent company on December 15. (The bank deducted a $30 fee from each 
wire transfer, so each fee paid was never part of the Petitioner's bank balance.) The statement did 
not identify the source of the remaining $5,030. 
The parent company sent two further wire transfers, $9,970 on February 1, 2017, and $19,970 six 
days later. These transfers took place about a month after the Director issued the request for 
evidence. The Petitioner did not provide a timetable for the remaining investment, or submit 
documentation of the parent company's commitment to fund the U.S. company's startup expenses. 
The omission is significant in light of the contradictory assertions as to whether or not an 
unidentified third party would provide the majority of the Petitioner's startup capital. 
On appeal, the Petitioner repeats the assertion that the foreign company's bank statement shows 
"cash deposits of more than $113,000.00:' Evidence of the foreign company's financial position 
does not, by itself, demonstrate that the company has committed to fund the new office to the extent 
that the Petitioner claims. The contradictory assertions in the business plan raise questions that the 
available evidence does not resolve. The foreign company's funding of the petitioning U.S. entity is 
incomplete, and has occurred at irregular intervals. 
Asked for documentation to support the projection that the new office will gross over $2 million in 
its first year of operation, the Petitioner has offered only the assertion that the foreign company has 
been successful and therefore the U.S. entity can expect success as well. This statement is not 
sufficient. The foreign company is more established and better staffed than the new U.S. office, and 
the Petitioner has not shown that the foreign company had comparable success in its earliest stages. 
The Petitioner has received some startup capital from its foreign parent company, but the record does 
not offer enough support for the ambitious financial projections set forth in the business plan. 
Matter ofG-E-A-S-P-T- LLC 
The Petitioner has not submitted supporting evidence sufficient to demonstrate that the Beneficiary 
would primarily engage in managerial duties, or that the new office would support a managerial 
position, after the initial year of operations. 
IV. CONCLUSION 
The Petitioner has established that the Beneficiary was employed abroad in a managerial capacity. 
but has not shown that its new office would support a managerial capacity within one year of 
approval of the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter ofG-E-A-S-P-T- LLC. ID# 698438 (AAO Dec. 12, 2017)