dismissed L-1A Case: Beauty Salon

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-C-
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY26,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a four-employee beauty salon, seeks to temporarily employ the Beneficiary as its 
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-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 Vermont Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary will be employed in the United States in a managerial or executive 
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capacity. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneliciary will be 
employed in a managerial capacity. 
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 
thereof in a managerial, executive, or specialized knowledge capacity. Section 101 (a)(15)(L) of the 
Act. 
An individual petition filed on Form I-129, Petition for a Nonimmigrant Worker, must include 
evidence that the petitioner will employ the beneficiary in an executive or managerial capacity, or in 
1 The Petitioner filed a subsequent combined motion to reopen and reconsider. The Director affirmed the denial 
decision. 
Matter af S-C-
a position requiring specialized knowledge, including a detailed description of the services to be 
performed. 8 C.F.R. § 214.2(1)(3)(ii). 
II. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary rn a 
managerial capacity under the petition 2 
Section 10l(a)(44)(A) of the Act defines the term "managerial capacity" 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 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. 
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. 
A. Duties 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job duties. The Petitioner's description of the job duties must clearly 
describe the duties to be performed by the Beneficiary and indicate whether such duties are tn a 
managerial or executive capacity. See 8 C. F.R. § 214.2(1)(3 )(ii). 
Based on the definitions of managerial and executive capacity, the Petitioner must tirst 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 
2 The Petitioner does not assert and the record does not demonstrate that the Beneficiary wilt be employed in an 
executive capacity under this petition. Accordingly, our analysis is limited to the issue of''managerial capacity.'' 
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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. USC!S, 469 
F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
In a letter submitted in support of the petition, the Petitioner provided the following job description 
for the Beneficiary's proposed position: 
He will be responsible for managing the shop, including hiring and firing of stylists, 
managing relations with independent contractor stylists, scheduling employees and 
contractors, managing venders [sic] and suppliers to maintain retail inventory of hair 
care products, accounting and managing payroll. licensing and regulatory compliance, 
and other business operations. 
In response to the Director's request for evidence (RFE) on this issue, the Petitioner emphasized that 
"[a]s the primary manager of the shop, [the Beneficiary] will have discretion and decision-making 
authority over the primary, as well as critical functions of the business." The Petitioner paraphrased 
the initial position description and added that the Beneficiary is also "expected to train Stylists in the 
latest European styles and techniques." 
On motion, the Petitioner stated that the Beneficiary, in addition to scheduling and managing the 
company's personnel, will also "be responsible for maintaining vendor contracts and relations," 
"ensuring sufficient product inventory," and "marketing the business, managing its finances 
including payroll and tax payments." On appeal, the Petitioner asserted that the Beneficiary's "role 
will be to supervise the professional stylist and manicurists - all employees of the company," and 
that "[h]e will direct their work, assist and provide training when necessary," and that he "has the 
authority to hire and fire the professional stylist staff, and otherwise control the daily operations of 
the company." 
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." Section 101(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). 
The Petitioner has described the Beneficiary's position as a first-line supervisor of its employees. 
Although the Petitioner added that the Beneficiary is also the individual who will maintain vendor 
contracts and relations and ensure sufficient product inventory, these duties are operational duties. 
Likewise, performing marketing duties is operational in nature and not managerial task. Similarly, 
duties that involve the handling the accounts receivable and payable, payroll, and tax payments are 
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Matter ofS-C-
administrative in nature. The record does not include evidence that there are employees who will 
relieve the Beneficiary from performing these necessary operational and administrative tasks that 
ensure the operation of the business. 
Although the Petitioner does not specitically claim that the Beneficiary in this matter is a function 
manager, the Petitioner initially asserted that "[a]s the primary manager of the shop, [the 
Beneficial)'] will have discretion and decision-making authority over the primary, as well as critical 
functions of the business," and on motion claimed that the Beneficiary "will be performing an 
essential function for the [Petitioner]- that of managing its entire operations." The term "function 
manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 10l(a)(44)(A)(ii) of the Act. The term "essential function" is not defined 
by statute or regulation. If a petitioner claims that a beneficiary will manage an essential function, a 
petitioner must furnish a written job offer that clearly describes the duties to be performed in 
managing the essential function, or more specifically, identify the function with specificity. 
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. See Matter of Z-A -, fnc., 
Adopted Decision 2016-02 (AAO Apr. 14, 20 16). 
As noted above, the Petitioner has described the Beneficiary's duties as including first-line 
supervisory duties of its employees and performing duties related to marketing the business, 
accounts receivable and payable, payroll, and tax reporting duties. The Petitioner does not indicate 
who will perform these tasks allowing the Beneficiary to focus on managing these functions. The 
position descriptions provided are insufficient to establish that the Beneficiary will manage an 
essential function rather than perform duties related to the function. 
The fact that the Beneficiary will manage or direct 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) of the Act. By statute, eligibility for this classification 
requires that the duties of a position be "primarily" executive or managerial in nature. Sections 
101 (A)( 44)(A) and (B) of the Act. While the Beneficiary may exercise discretion over the 
Petitioner's day-to-day operations and possess the requisite level of authority with respect to 
discretionary decision-making, the position descriptions alone are insufficient to establish that his 
actual duties would be primarily managerial or executive in nature. The position descriptions in this 
matter show the Beneficiary performing the Petitioner's marketing, bookkeeping, inventory, and 
first-line supervisory duties, duties that do not fall directly under managerial or executive duties as 
defined in the statute. For this reason, we cannot conclude that the Beneficiary is primarily 
performing the duties of a manager or an executive. See !KEA US. Inc. v. U.S. Dept. of Jusrice, 
48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
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Maller ofS-C-
B. Staffing 
Beyond the required description of the job duties, we review 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 Petitioner submitted an organizational chart and brief description of duties for the Beneficiary's 
subordinates. On the organizational chart, the Petitioner showed that the Beneficiary as the manager 
would report to the managing majority owner of the company. The Petitioner placed three stylists 
subordinate to the Beneficiary's position on the chart, noting that two of the stylists were also the 
Petitioner's minority owners. The three stylists' duties included providing salon services such as 
cutting, styling coloring, and related services to customers. The organizational chart also depicts a 
receptionist in a position subordinate to the three stylists. The Petitioner also submitted copies of 
review reports for an employer's quarterly payroll for the third and fourth quarters of 2013. The 
documents do not identify the Petitioner as the employer. 
On motion, the Petitioner asserted that its staffing levels are sufficient to relieve the Beneficiary 
from providing services. The Petitioner also acknowledged that a four-year or professional degree is 
not required for its employees' positions and noted that its employees are required to be licensed 
which requires training at an accredited professional training school. The Petitioner also submitted 
its payroll records for portions of March and April 2016. Although we have reviewed the payroll 
records submitted, we do not find them relevant to this petition filed more than a year earlier. The 
Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
The Petitioner has not submitted payroll records or tax documentation showing payment made to 
employees or contractors at the time the petition was filed and continuing for the following year. 
On appeal, the Petitioner asserts that it has more than enough managerial work for the Beneficiary in 
overseeing its staff and managing its operations. The Petitioner, which is located in Virginia, also 
contends that licensure for a cosmetologist in Maryland requires 1,500 hours or training in an 
approved training facility. The Petitioner, however, does not explain the relevance of Maryland's 
licensing requirements for its hair stylists employed at its Virginia location. 
The Petitioner does not define how much time the Beneficiary will spend supervising subordinates 
and how much time he will spend performing the operational and administrative tasks of the 
business operations. However, even if the Beneficiary will primarily supervise the Petitioner's three 
hair stylists and the receptionist, the Petitioner has not established that the subordinate employees are 
supervisory, professional, or managerial as required by section !Ol(a)(44)(A)(ii) of the Act. The 
Petitioner's organizational chmi and position descriptions for the employees subordinate to the 
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!'.!fatt er ofS-C-
Beneficiary 's position do not show that these em ployees supervise other emp loyees or that they 
manage a department or function, such that they can be classified as managers or supe rvisors. 
On motion and appeal, the Peti tioner appears to claim chat the hair stylist posit ions are pro fessional 
positions , even though they do not requir e a bacca laureate degree. However, when eval uating 
whether a beneficiary man ages professional employees, we must evaluate whether the subo rdinate 
positions require a baccalaur eate degree as a minimum for entry into the ile!d of endeavor. (f 
8 C.F.R. § 204.5(k)(2) (defining "profession " to mean "any occupat ion for whic h a U.S. 
baccalaur eate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation"). Section 10 I (a)(32) of the Act, states that "[t]he term profession shal l includ e but not 
be limited to architects, engineers , lawyers, physicians , s urgeons, and teache rs in e lementary or 
secondary schools, colleges, academ ies, or seminaries. " 
Therefore , we focus on the level of education requir ed by the positi on, and not the deg ree, if any, 
held by subo rdinate empl oyee . The Petiti oner has not establi shed that a bachelo r's degree is 
requir ed to perform the dutie s of hair cutting , sty ling, coloring and related services. Add itionally, 
the Petition er has not presented persuasive argu ment that the hair sty list positions should be 
other wise conside red profe ss ional positions under the s tatute and reg ulations. Thus, the Petitioner 
has not show n that the Beneficiary's subordinate employees are supervisory , professional, or 
manageri al, as required by section 101(a)(44)(A)(ii) of the Act. 
Upon review of the totality of the recor d, the Petitioner has not established that the Beneficiary will 
perfonn primarily manag erial or execu tive duties on b ehalf of the Petitioner. The appeal mus t be 
dismiss ed for this reason. 
Ul. QUALIFYING RELATIONSH IP 
V•/e also found in our preliminary review of the record that the recor d did not support a qualifying 
relation ship between the Petitioner and the Benefic iary' s foreign emplo yer and notified the 
Petiti oner in our RFE. 
The record includes the Petitioner's statement that the Benefici ary a nd his partner each own 50 
percent of the Beneficiary 's fore ign employ er. The Petitioner 's owne rs are (60 
percent ), (20 percent) , and (20 percent). The Petitioner also submitted 
evidence relat ing to another U.S. company, organized in 2015 
imme diate ly prior to filing of the petition, which lists five 0\Vners, and 
(the Petition er's three owners) , and the Beneficiar y and his partne r (the fore ign enti ty' s 
owner) all hold ing a 20 percent interest in the company. 
We advi sed the Petitioner that the evidence did not establish the requisite qualifying relationship 
between the Petitioner and the Beneficiary's foreign employer. We req uested furth er explanation 
regarding the 1 imited Jiability compan y formed in 20 I 5 and its rele vance to the qualifYing 
relation ship in this matter. 
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Malter of S-C-
In response to our RFE, the Petitioner appears to assert that the creation of the third party company 
results in an affiliate relationship between the Petitioner and the Beneficiary's foreign employer. 
Specifically, the Petitioner states is an affiliate of the Petitioner because the 
companies have three owners in common; and, that is also an affiliate of the 
Beneficiary's foreign employer because those two entities have two owners in common. 
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 l0l(a)(l5)(L) ofthe Act; 8 C.F.R. § 214.2(1). 
The term "affiliate" means (1) one of two subsidiaries both of which are owned and controlled by 
the same parent or individual, or; (2) one of two legal entities owned and controlled by the same 
group of individuals, each individual owning and controlling approximately the same share or 
proportion of each entity. 8 C.P.R.§ 214.2(1)(1 )(ii)(L). 
Here, the Petitioner and the Beneficiary's foreign employer share no common ownership or control. 
They are not owned, in any part, by the same parent entity, individual or group of individuals and 
therefore do not have a qualifying relationship for the purposes of this classification. The fact that 
both entities have some common ownership with the same third entity, 
does not overcome this fundamental deficiency, or create an affiliate relationship between two 
otherwise unrelated entities. The petition must also be denied on this issue. 
IV. CONCLUSION 
The appeal is dismissed because the Petitioner did not overcome the Director's determination that 
the Beneficiary's position with the Petitioner did not qualify as a manager or an executive. We also 
find that the Petitioner did not establish a qualifying relationship with the Beneficiary's foreign 
employer. 
ORDER: The appeal is dismissed. 
Cite as Matter of S-C-, ID# 318922 (AAO May 26, 20 17) 
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