dismissed L-1A Case: Automotive Parts

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-US INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC.21.2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. an importer and exporter of automotive and industrial parts. seeks to temporarily 
employ the Beneficiary as president/CEO of its new office 1 under the L-1 A nonimmigrant 
classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 
101(a)(l5)(L), 8 U.S.C. § 110l(a)(l5)(L). The L-lA 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 California Service Center denied the petition, concluding that the Petitioner did 
not establish. as required. that: (I) the Beneficiary has been employed abroad in a managerial or 
executive capacity: and (2) the nevv office would support a managerial or executive position within one 
year of approval of the petition. 
On appeal, the Petitioner asserts that the Director's decision was lacking in factual and legal analysis 
and did not properly apply the statute and regulations to the facts presented. The Petitioner 
maintains that the Beneficiary has managed and will manage the core functions of the organization. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification for 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 tor 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 afTiliate thereof in a managerial or executive capacity. Section 101(a)(15)(L) of the 
Act. The petitioner must also establish that the beneficiary's prior education. training. and 
1 
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(l)(l)(ii)(F). The regulation at 8 C.F.R. ~ 214.2(1)(3)(v)(C) allows a '"new office·· operation no 
more than one year within the date of approval of the petition to suppott an executive or managerial position. 
Matter ofH-US Inc. 
employment qualities him or her to perform the intended services in the United States. 8 C .F.R. 
§ 214.2(1)(3 ). 
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 oftice·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 Kenerally. 8 C.F.R. 
§ 214.2(1)(3)(v). 
'"Managerial capacity"' means an assignment within an organization in which the employee primarily 
manages the organization. or a department, subdivision. function, or component of the organization: 
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: has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed: and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) ofthe Act. 
"Executive capacity'· means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization: 
establishes the goals and policies of the organization. component or function: exercises wide 
latitude in discretionary decision-making; and receives only general supervision or direction from 
higher-level executives. the board of directors. or stockholders of the organization. Section 
10l(a)(44)(8) ofthe Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity. U.S. Citizenship and Immigration Services (USCIS) takes into account the 
reasonable needs of the organization. in light of the overall purpose and stage of development of the 
organization. See section 101(a)(44)(C) ofthe Act. 
II. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE CAPACITY 
In the denial decision. the Director determined that the submitted job description for the 
BeneJiciary"s employment abroad was vague and did not establish what he does on a day-to-day 
basis. The Director further found that the evidence did not establish that the foreign entity· s staff 
sufficiently relieve the Beneficiary from performing non-qualifying duties required for the daily 
operation of its affiliate· s business. 
On appeal. the Petitioner contends that the Director" s decision lacked any meaningful analysis of the 
Beneficiary's managerial and executive job duties. The Petitioner emphasizes that the Beneficiary 
manages the entire organization, manages ··several essential functions:· has the authority to hire and 
fire stan: supervises two management-level employees. and exercises broad discretion over the day­
to-day operation of the company. 
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Matter ofH-U'! Inc. 
When exammmg the executive capacity of a given beneficiary. we will review the petitiOner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties performed by the beneficiary and indicate whether such duties are in a managerial or 
executive capacity. See 8 C.F.R. § 214.2(1)(3 )(ii). Beyond the required description of the job duties. 
users examines 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. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the foreign entity's business and its statTing levels. 
A. Duties 
At the time of filing. the Petitioner stated that the Beneficiary, as president and CEO of its foreign 
afliliate. was responsible for managing the entire operation, supervising personneL making personnel 
decisions, and directing the business affairs of the company, including sales. purchasing. manpower. 
fiscal planning, and business development. 
In a request for evidence (RFE). the Director advised the Petitioner that the job description was 
overly broad, and advised that it should submit additional details regarding the Beneficiary's specific 
managerial or executive duties and the percentage of time he spends on each task. In response. the 
Petitioner stated that the Beneficiary's role is both executive and managerial. The Petitioner 
indicated that the Beneficiary. as an executive. makes major corporate decisions. leads the 
development of business plans and strategies. recommends an annual budget. and implements 
policies and procedures to promote corporate efficiency. 
Further. the Petitioner stated that the Beneficiary's managerial duties include: overseeing the 
company's operations on a day-to-day basis: reviewing incoming communications and responding to 
urgent matters: meeting with subordinates to discuss purchases and sales: directing subordinates to 
negotiate contracts: advising on contract fulfillment issues; reviewing market trends identified by 
subordinate employees: making frequent visits to the warehouse to check up on product quality and 
inventory: and conducting employee annual performance reviews. 
We agree with the Director's finding that these duties are not sutTiciently detailed to establish that 
the Beneficiary's duties are primarily managerial or executive in nature. The description provided in 
response to the RFE focuses on the Beneficiary's level of authority, but did not provide insight into 
the nature of his day-to-day tasks and the amount of time he allocates to specific duties. The 
Petitioner did not provide examples of plans and strategies or major corporate decisions that have 
occupied his time, policies or procedures he has implemented. or explain how much time the 
Beneficiary allocates to the claimed executive duties. 
In addition. as discussed further below. the record does not establish to what extent the Beneficiary 
has been able to delegate non-managerial purchasing. sales. warehouse. financial. and administrative 
Matter qf H-US Inc. 
duties to his subordinate employees. and is therefore insufficient to establish that the foreign 
company is able to support a primarily managerial position. Moreoyer. some of the listed 
"managerial'' duties, such as handling contract fulfillment issues and visiting the warehouse to 
review inventory levels and product quality. are not managerial in nature. 
Although the Director requested that the Petitioner assign percentages of time to each of the 
Beneficiary"s duties, the Petitioner did not provide this information. We are therefore unable to 
determine whether the claimed managerial duties constitute the Beneficiary" s primary duties. or 
whether the Beneficiary primarily performs non-qualifying administrative or operational duties. 
Although the Director specifically requested the information. the Petitioner's description of the 
Beneficiary's job duties does not establish what proportion of the duties is managerial in nature. and 
what proportion is non-managerial. See Repuh!ic of' Transkei v. INS. 923 F.2d 175, 177 (D.C. Cir. 
1991 ). 
The fact that the Beneficiary manages or directs a business does not necessarily establish eligibility 
for classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of section 101(a)(44) ofthe Act. By statute. eligibility for this classification requires that 
the duties of a position be ··primarily" managerial or executive in nature. Sections I 0 I (A)( 44 )(A) or 
(B) of the Act. While the Beneficiary may exercise discretion over the foreign entity's day-to-day 
operations. the position descriptions alone are insufficient to establish he performs primarily 
managerial or executive duties. 
B. Statling and Organizational Structure 
At the time of tiling, the Petitioner stated that the foreign entity has four full-time employees. 
including the Beneficiary. an administrator/sales and purchasing manager. a sales manager. and an 
office manager. The Petitioner indicated that the foreign entity, which imports. exports. refurbishes 
and sells new and used automobiles, automobile parts and industrial machinery. relies on 
independent contractors to work in its warehouse. 
In response to the RFE. the Petitioner stated that the individual previously identifies as '·sales 
manager" holds the position of "general manager/sales manager." and indicated that his duties 
include: reviewing data to determine progress towards goals and objectives: developing and 
implementing business strategies for sales. financial performance and new product development: 
overseeing manufacturing and materials departments to review production and operating reports: 
resolving operational. manufacturing and facility problems: reviewing operations and plans; and 
conducting accounting analysis for budgetary planning and implementation. 
Many of these duties overlap with the Beneficiary"s own duties and are inconsistent with the 
Petitioner's claim that the Beneficiary delegates the company"s lower-level sales tasks to this 
subordinate employee. Further. the foreign entity does not have ·'manuf~lcturing" or .. materials" 
departments for this employee to oversee. which further undermines the probative value of this 
position description. The Petitioner does not indicate that the sales manager actually performs or 
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Matter of H-US Inc. 
oversees any sales activities. The Petitioner has not supported its claim that this is a management­
level position or credibly identified this employee· s duties. 
The job description provided for the administrator/purchase manager indicates that this employee is 
performing the company's routine purchasing tasks, not performing supervisory or managerial job 
duties. The Petitioner stated in response to the RFE that the person previously identified as '"otTice 
manager'' is actually an oflice assistant who performs administrative and clerical duties. Finally. the 
Petitioner indicated that it employs ''9 laborers .. in its warehouse. who handle automobile parts and 
refurbish used automobiles and industrial equipment. The Petitioner did not further elaborate or 
indicate that the warehouse has an assigned supervisor or manager. 
The statutory definition of "managerial capacity .. allows for both '"personnel managers .. and 
"function managers.'' See section 10l(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.'' 2 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 tire those employees. or 
recommend those actions, and take other personnel actions. Section 10l(a)(44)(;\)(iii) ofthe Act. 
The Petitioner claims that the Beneficiary supervises subordinate managers. but has not established 
that his subordinates perform managerial or supervisory duties. The evidence must substantiate that 
the duties of a beneficiary and his or her subordinates correspond to their placement in an 
organization's structural hierarchy. Managerial job titles assigned to subordinates arc not probative 
and will not establish that an organization is sufficiently complex to support an executive or 
managerial position. The evidence does not support a conclusion that the Beneficiary's subordinates 
are supervisors. managers, or professionals. Instead. the Beneficiary's subordinates more likely than 
not perform the actual routine. operational tasks of the company. The Petitioner has not provided 
evidence of an organizational structure sutlicient to elevate the Beneficiary to a supervisory position 
higher than a first-line supervisor of non-professional employees. 
On appeal. the Petitioner claims that the Beneficiary manages "several essential functions .. including 
'"all of the business negotiations the company conducts." The term "function manager·· applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead 
~ 
~ In evaluating whether a 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. Cf 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 10 I (a)(32) of the Act. states that "[tjhe term profession 
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 has not established that a bachelor"s degree is 
required for any of the foreign entity's positions or claimed that the Beneficiary oversees professionals. 
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Matter ofH-US Inc. 
is primarily responsible for managing an ""essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act. 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 ··o) 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 perfhrm, 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 of G- Inc., Adopted Decision 
2017-05 (AAO Nov. 8. 2017). 
The Petitioner has not provided evidence that the Beneficiary manages an essential function. As 
discussed, the record does not establish that the Beneficiary's duties are primarily manageriaL nor 
has the Petitioner adequately articulated how he manages an essential function. Further. based on 
the descriptions of the foreign entity's statling. it is unclear ho\V the subordinates fully relieve him 
from having to perform some non-managerial sales and purchasing activities. rather than managing 
such activities. Again. the Petitioner did not indicate that its sales manager actually performs or 
oversees sales duties and it remains unclear who is responsible tor the sales activities that the 
Beneficiary is claimed to manage. 
The Petitioner initially claimed that the Beneficiary performs a combination of managerial and 
executive duties. The statutory definition of the term ··executive capacity'" focuses on a person· s 
elevated position within a complex organizational hierarchy. including major components or 
functions of the organization, and that person· s authority to direct the organization. Section 
101(a)(44)(B) of the Act. Under the statute. a beneficiary must have the ability to "'direct the 
management" and "establish the goals and policies" of that organization. Inherent to the definition. 
the organization must have a subordinate level of managerial employees for a beneficiary to direct 
and they must primarily focus on the broad goals and policies of the organization rather than the 
day-to-day operations of the enterprise. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "'direct" the enterprise as the 
owner or sole managerial employee. A beneficiary must also exercise ··wide latitude in discretionary 
decision making" and receive only "general supervision or direction from higher level executives. 
the board of directors. or stockholders of the organization." !d. 
We must take into account the reasonable needs of the organization and that a company's size alone 
may not be the only factor in denying an L-1 A visa petition. See section I 01 (a)( 44)(C) of the Act. 
However. it is appropriate for USC IS to consider the size of the petitioning company in conjunction 
with other relevant factors. such as the absence of employees who would perform the non­
managerial or non-executive operations of the company. Family Inc. \'. USCIS. 469 F.3d 1313 (9th 
Cir. 2006): Systronics Corp. v. INS. 153 F. Supp. 2d 7, 15 (D.D.C. 2001 ). The size of a company 
may be especially relevant when USCIS notes discrepancies in the record. See S)'stronics. 153 F. 
Supp. 2d at 15. 
Here. although the Petitioner indicated that the Beneficiary is responsible for establishing the foreign 
entity's goals and policies, it did not establish how the company's three-person staff sufficiently 
Matter olH-US Inc. 
relieves the Beneficiary from significant involvement in the day-to-day operations of the company. 
The Petitioner did not provide a credible job description for its sales manager or document its use of 
warehouse workers. Nor did it adequately explain who supervises the warehouse or who handles the 
company's import and export tasks. It does not appear that the reasonable needs of the foreign entity 
could be met by the services of the Beneficiary as president, an assistant and two managerial 
subordinates. Regardless, the reasonable needs of the company serve only as a factor in evaluating 
the Beneficiary's foreign position. The Petitioner must still establish that the Beneficiary has been 
employed abroad in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the 
Act. It has not met this burden. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director further determined that the Petitioner did not establish that its new oflice would be able 
to support a managerial or executive position within one year of approval of the petition. 
In the denial decision, the Director emphasized that the Petitioner has not provided information 
regarding the duties of staff to be hired during the first year, nor established that the organizational 
structure would be suniciently developed within that initial year to support the Beneficiary in a 
managerial or executive position. 
On appeal, the Petitioner asserts that the Director's decision .. ignores evidence supporting the 
Beneficiary's key managerial and executive role in forging relationships \\ith potential customers 
and business partners at various industry trade shows. negotiating contracts for sales and purchase." 
and his ··sole discretion to establish goals and policies of the U.S. company and determine the 
direction the company will take." The Petitioner further contends that the Director did not consider 
the nature of a start-up company or the amount of time it realistically takes to get the company up 
and running. 
In the case of a new office petition. beyond the description of a beneficiary's proposed job duties. we 
review the petitioner's business and hiring plans and evidence that the business will grow 
sufficiently to support a beneficiary in the intended managerial or executive capacity. A petitioner 
has the burden to establish that it would realistically develop to the point where it would require the 
beneficiary to perform duties that are primarily managerial or executive in nature within one year. 
Accordingly, the totality of the evidence must be considered in analyzing whether the proposed 
managerial or executive position is plausible considering a petitioner's anticipated staffing levels and 
stage of development within a one-year period. S'ee 8 C.F.R. ~ 214.2(1)(3)(v)(C). 
A. Projected Stat1ing and Business Plan 
The Petitioner has consistently stated that it intends to engage in the purchase. export. and sale of 
U.S. automotive electrics and cooling parts, as well as the import of auto and industrial vehicle parts 
for sale in the United States. The Petitioner's initial evidence did not include information regarding 
the scope of the new office. its intended organizational structure, or its financial goals. or 
information regarding the size ofthe United States investment. 
l'vfaller ofH-US Inc. 
In the RFE. the Director advised the Petitioner of these evidentiary deficiencies, and provided a list 
of suggested evidence it could submit to establish how the company vvould be able to suppmi a 
managerial or executive position within one year. Such evidence including a detailed letter trom the 
foreign entity explaining the proposed number of employees and types of positions they will hold. a 
business plan outlining the company"s proposed actions for the first year. and a proposed U.S. 
organizational chart showing all proposed positions and expected duties. 
In response, the Petitioner stated that the Beneficiary would be hiring and training staff: including an 
office assistant to assist with answering calls and responding to emails. The Petitioner indicated that 
the Beneficiary would contract workers for the Petitioner's warehouse once a warehouse location is 
established. Finally. the Petitioner indicated that once the Beneficiary has .. gotten the business off 
the ground,"' he will hire a ··us manager .. and train this employee before returning abroad. With 
respect to the size of the U.S. investment. the Petitioner documented a $10.000 transfer from the 
foreign entity and indicated that it would transfer .. more funds'' to the U.S. company upon approval 
of the petition. 
The Petitioner did not submit a proposed organizational chart. a timeline of proposed actions for the 
first year, information regarding the company's financial objectives. or other evidence that would 
illustrate the company"s anticipated scope and stage of development at the end of the first year of 
operations. Based on the limited information provided. we cannot determine that the $1 0.000 
investment is sufficient for start-up expenses. how much additional funding the company may 
require. or how much is actually available to it. The Petitioner did not provide its projected revenue 
or operating expenses in support of its claim that it would be able to hire staff and expand to the 
point where it would require the services of a manager or executive by the end of the first year. 
Further, the Petitioner did not provide a detailed outline of its intended staffing. and we cannot 
determine whether the company would employ anyone other than the Beneficiary and an assistant by 
the end of the first year of operations. The Petitioner has not established that an office assistant 
would relieve the Beneficiary from performing the non-qualifying duties associated with purchasing. 
marketing sales. bookkeeping. invoicing, importing. exporting and other routine aspects of the 
company's intended business. Even if the Petitioner had provided evidence that it is likely to be able 
to hire a '·Us manager" during the first year. it did not provide a duty description for this proposed 
position. 
Therefore, we agree with the Director's finding that the record does not sufficiently establish the 
proposed nature. scope. or stat1ing of the company within one year. Without this evidence. the 
Petitioner has not supported a claim that the organization will grow to the point vvhere it can support 
a managerial or executive position within that timeframe. 
B. Duties 
The Petitioner submitted only a broad description of the Beneficiary's proposed duties as president 
and CEO. The Petitioner noted that he will "supervise and control the operations of the entire 
company,'' direct business strategies. formulate financial plans. establish policies and operational 
Matter ofH-US Inc. 
guidelines, review budgets, and exercise wide latitude in personnel management.·· The Petitioner 
further indicated that he will '"be responsible for the overall operations of the company, .. and 
exercise "'broad discretionary authority in policy formulation.·· Conclusory assertions regarding the 
Beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute 
or regulations does not satisfy the Petitioner· s burden of proof. Fed in Bros. Co .. Ltd. v. Sam, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), affd. 905 F. 2d 41 (2d. Cir. 1990): Aryr Assoc.\· .. Inc. \'. 
Meissner. 1997 WL 188942 at *5 (S.D.N.Y.). 
As noted, the Petitioner did not indicate whether it would hire any subordinate staff other than an 
office assistant during the tirst year. On appeal. the Petitioner emphasizes the Bencticim-y' s 
""executive and managerial role" in which he will be ""forging relationships with potential customers 
and business partners, .. negotiating sales and purchase contracts. attending trade shows. and being 
responsible for business development. While all of these responsibilities are essential to the 
development and growth of the business. the Petitioner has not established that the Beneficiary 
would be performing sales. purchasing, marketing and development duties at a primarily managerial 
or executive level by the end of its initial year of operations. The Petitioner has no documented 
plans to hire subordinate staff to perform the key day-to-day operational tasks of its import and 
export business and therefore it is reasonable to conclude that the Beneficiary himself would be 
primarily performing. rather than managing. these tasks at the end of the initial year. The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros .. 724 F. Supp. at II 08. 
a.ffd, 905 F.2d 41 (2d. Cir. 1990). 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. e,:,~, sections 101(a)(44)(A) and (B) of the Act (requiring that 
one ·'primarily'' perform the enumerated managerial or executive duties): Maffer of' Church 
Scientolo;.,'y In!'/., 19 I&N Dec. 593, 604 (Comm 'r 1988). 
The Petitioner has consistently stated that the Beneficiary will occupy the senior position in the new 
office, but has not submitted a job description or consistent, credible supporting evidence suHicient 
to demonstrate that he would primarily engage in managerial or executive duties, or that the nevv 
office would support a managerial or executive position. after the initial year of operations. 
IV. CONCLUSION 
The Petitioner has not established that the Beneficiary has been employed abroad in a managerial or 
executive capacity, or that he would be employed in a managerial or executive capacity in the United 
States within one year. 
ORDER: The appeal is dismissed. 
Cite as Matter ofH-US Inc .. ID# 839524 (AAO Dec. 21, 2017) 
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