dismissed L-1A Case: Beverages

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-H-US, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUN.l2,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, describing itself as a company that develops and markets a proprietary line of 
beverages, seeks to temporarily employ the Beneficiary as its chief executive officer ("CEO") under 
the L-1 A nonimmigrant classification for intracompany transferees. Immigration and Nationality 
Act (the Act) section IOI(a)(IS)(L), 8 U.S.C. § l!Ol(a)(IS)(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 California Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that the Beneficiary was employed abroad and would be employed in the 
United States in a managerial or executive capacity. 
On appeal, the Petitioner disputes the Director's decision and submits a brief in support of its 
contentions. 
Upon de novo review, we find that the Petitioner has not overcome the grounds cited for denial. 
Therefore, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section IOI(a)(l5)(L) of the Act. 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 also establish that the beneficiary's prior education, training, and employment 
qualify him or her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
Matter of T-H-US, Inc. 
II. MANAGERIAL CAPACITY 
The discussion below will address the Director's findings regarding the Beneficiary's proposed 
employment with the U.S. entity, adding our own findings regarding the Beneficiary's current 
employment abroad with the Petitioner's parent entity. 
A. U.S. Employment 
The first issue we will discuss in this decision is the Beneficiary's proposed employment with the 
U.S. entity. The Petitioner claims that the Beneficiary will be employed in a managerial capacity. 
Therefore, we will only address this claim in our decision and will not contemplate whether the 
Beneficiary would be employed in an executive capacity. 
"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 
101(a)(44)(A) of the Act. 
I. Staffing 
In determining whether the Beneficiary would be employed in a managerial capacity, we will 
examine the Petitioner's organizational structure, including any subordinates the Beneficiary may 
have, their job duties, the presence of other employees to relieve the Beneficiary from performing 
operational duties, and the nature of the business along with any other factors that will contribute to 
understanding the Beneficiary's actual duties and role within the petitioning organization. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we take into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. See section 10 I (a)( 44)(C) of the Act. 
In the present matter, the Petitioner indicated that it was established in 2014, but claimed only one 
employee and no income at the time of filing. The Petitioner provided a cover letter claiming that 
the Beneficiary's position as CEO will involve assigning work to an administrative staff. The 
Petitioner also provided a proposed organizational chart showing two divisions - "Beverage" and 
"Medical Food/Supplement"- comprising the organization. Although the chart depicts the CEO at 
the top of the . hierarchy overseeing these two divisions, it indicates that the "Medical 
Food/Supplement" is a "new business" that is not currently "registered" and will only become 
operational within three years. The chart depicts a "farm" in Vietnam at the top of the beverage 
division, but does not indicate who runs the farm or who carries its daily operational tasks, nor does 
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Matter of T-H-US. Inc. 
it explain the farm's connection to the Petitioner's beverage division or the employees that comprise 
that division. Next, the chart depicts a managerial tier comprised of a supply chain manager, a sales 
manager, and a marketing manager. The chart also shows an "Administration & Finance" position 
subordinate to the Beneficiary, but does not indicate whether this position is specific to either of the 
company's two divisions. Lastly, the chart indicates that the beverage division will include a 
Vietnam-based marketing team that will assist a U.S.-based marketing manager. 
In addition, the Petitioner provided a business plan stating that its initial goal is to enter the natural 
beverage market in the United States and that it planned to meet this goal by keeping "a lean 
organization" in 2017 and developing "strong relationships" with "key selected" business partners, 
such as suppliers, packers, and inventory managers. The Petitioner claimed that it plans to "carry 
out a pilot launching at specific geographic areas to test the reformulated products" during the 
second half of 2017. The Petitioner also described a future marketing strategy and a "3-month 
forecasting model" it plans to develop, stating that it will operate with a "limited number of human 
resources at the initial stage" of its operation. 1 The Petitioner stated that the Beneficiary is currently 
its only U.S. representative, claiming that aside from the Beneficiary, it is also working with various 
"third parties," including a registered corporate agent, a corporate legal advisor, a CPA firm, and 
other unnamed law firms for trademark and brand registration.2 The Petitioner anticipated recruiting 
one administration/bookkeeping employee to support the Beneficiary "[i]n the short coming time," 
followed by an accounting and finance controller, a logistics coordinator, and a sales manager at the 
initial stage of its operation. 
In a request for evidence (RFE), the Director observed that the Petitioner had no employees at the 
time it filed the instant petition, questioning the sufficiency of the Petitioner's organizational 
structure to relieve the Beneficiary from having to carry out its operational functions. 
The Petitioner responded with a statement in which it repeatedly referred to itself as a "start-up" and 
explained that it planned to hire consultants with knowledge of the organic food and beverage 
market to help it access that industry. The Petitioner stated that it planned to hire personnel and 
develop a human resources department only after it meets its preliminary business objectives, such 
as establishing "key divisions within the company" and creating a marketing strategy and means to 
save on costs. The Petitioner did not state or provide evidence to show that it was ready to do 
business and that it had the ability to support the Beneficiary in a managerial position at the time it 
filed the instant petition. 
1 Although the business plan indicates that the Petitioner was at a rudimentary developmental stage at the time this 
petition was filed, the Petitioner checked the "No" box in the L Classification Supplement, when asked if the Beneficiary 
was coming to the United States to open a new office. We therefore cannot apply "new office" regulations and accord 
the Petitioner treatment as a new office. 
2 We note that at the time of filing, the Beneficiary was subject to the limitations of a nonimmigrant B-1 visitor visa, 
which does not authorize employment in the United States. 
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Matter of T-H-US, Inc. 
In the denial decision, the Director concluded that the Petitioner did. not establish that the 
Beneficiary would be employed in a managerial capacity. The Petitioner disputes the Director's 
conclusion and contends that the Director applied an incorrect standard when reviewing the 
evidence. The Petitioner asks us to consider "ALL the evidence" within the scope of the company's 
early developmental phase. Having done so, we find that the Petitioner incorrectly relies on its early 
phase of development to justify its lack of a support staff. While the Petitioner's current 
organizational needs may be reasonable based on its operational phase, those needs will not 
supersede the statutory criteria requiring the Beneficiary to "primarily" perform managerial job 
duties. See sections 101(a)(44)(A) of the Act. In the present matter, the Petitioner's claimed 
eligibility is based primarily on projected actions, including the hiring of support personnel, which 
had not yet taken place at the time this petition was filed. 
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Although we acknowledge the Petitioner's submission of a business plan and the various business 
projections made therein, 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). As noted earlier in our discussion, the record indicates that at 
the time of filing the Petitioner was at a rudimentary developmental phase and had no support staff 
to relieve the Beneficiary from having to allocate her time primarily to operational tasks in order to 
commence business operations and ensure that the Petitioner progresses to the next developmental 
phase. The Petitioner claimed only one employee at the time of filing- presumably the Beneficiary. 
In fact, it expressly stated that it planned to operate with the Beneficiary as its only employee for an 
undetermined period of time. The Petitioner did not explain how this limited organizational 
structure, which included no lower-level employees to relieve the Beneficiary from having to devote 
her time primarily to the organization's operational and administrative functions, would be sufficient 
to support the Beneficiary in a managerial capacity at the time of filing. 
2. Duties 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
I 533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also demonstrate that the 
Beneticiary will be primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
Accordingly, in order to establish eligibility, the Petitioner must provide a job description that 
clearly describes the duties to be performed by the Beneficiary and indicate whether such duties are 
in a managerial capacity. See 8 C.F.R. § 214.2(1)(3)(ii). 
The Petitioner's supporting cover letter stated that the Beneficiary's proposed position will involve 
overseeing the U.S. operation and reporting to the foreign entity's board of directors, developing and 
implementing policies and strategies, conducting market research to identify business opportunities, 
proposing a budget and business plan for developing and selling products, recruiting and hiring 
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Matter of T-H-US, Inc. 
personnel, engaging in contract negotiations with suppliers, and developing systems to manage the 
Petitioner's finances, human resource structure, and supply chains. 
In the RFE, the Director informed the Petitioner that the job description submitted in support of the 
petition was insufficient because it lacked detail about the Beneficiary's daily job duties and the 
amount of time she would allocate to those duties. 
In response, the Petitioner provided a new job duty breakdown, which categorized the Beneficiary's 
job duties as "Executive Duties," "Business Development Activities," and "Operations Related 
Activities"; it indicated that the Beneficiary would allocate 40% of her time to duties in each of the 
first two categories and 20% of her time to the job duties in the third category. The Petitioner listed 
several job duties that the Beneficiary would have been unable to perform at the time of filing. For 
instance, the Petitioner indicated that the Beneficiary would review and monitor financial indicators 
and communicate with clients and distributors. However, the Petitioner does not appear to have 
commenced doing business as of the date of filing and therefore would have had no financial 
indicators for the Beneficiary to review and no clients or distributors with whom to communicate. 
Likewise, the Petitioner referred to the Beneficiary's oversight of its "multiple divisions," including 
sales, product development, finance, operations, quality control, and human resources, and indicated 
that the Beneficiary would collaborate with "division leads" and set standards for hiring and 
conducting performance reviews. However, these divisions had not y~t been established when this 
petition was filed, thereby precluding the Beneficiary from being able to carry out any job duties that 
required overseeing company divisions or working with the leadership of and staff within those 
divisions. 
Given the Petitioner's early developmental phase at the time of filing, the Petitioner did not have 
either the need or the ability to assign the Beneficiary the above-listed duties. Although ii is 
plausible that the Petitioner would eventually reach a phase of development that would require the 
Beneficiary to perform these duties, it had not attained that phase when the petition was filed. As 
noted 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). As such, we cannot determine the Petitioner's eligibility based on facts and 
circumstances that did not yet exist at the time of filing. Here, we find that a number of the assigned 
duties were projected for a future position that the Beneficiary could not have held when the petition 
was filed, as the Petitioner had not yet attained the organizational complexity or level of business 
activity that was required for the J;leneficiary to be able to execute those duties. 
In sum, we find that the Petitioner made unsupported claims about the Beneficiary's proposed job 
duties and provided insufficient evidence to show that it was able to relieve the Beneficiary from 
having to allocate her time primarily to non-managerial job duties at the time the petition was filed. 
Therefore, we cannot conclude that the Beneficiary would be employed in a managerial capacity 
under an approved petition. 
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Matter of T-H-US, Inc. 
B. Foreign Employment 
We also conclude that the Petitioner did not demonstrate that the Beneficiary was employed abroad 
in a managerial capacity. 
First, we note that there are inconsistencies with regard to the Beneficiary's dates of employment 
with ihe foreign entity. In the L Classification Supplement, the Petitioner stated that the Beneficiary 
has been employed by the foreign parent entity from November 2009 through the present; the 
Petitioner indicated that this period of employment was briefly interrupted from 2015-2016 when the 
Beneficiary left to complete the requirements for a master's degree. The claim regarding the 
Beneficiary's dates of employment is inconsistent with an employment verification letter from the 
foreign entity's general director, who confirmed the Beneficiary's departure from July 2015 to 
August 2016, but stated that the Beneficiary's employment with the foreign entity commenced on 
February I, 2013. 
We further note that the Petitioner provided inconsistent organizational charts to illustrate the 
Beneficiary's placement within the foreign entity's organizational hierarchy. In support of the 
petition, the Petitioner provided a chart depicting the Beneficiary as overseeing a sales and 
marketing director. That chart indicated that the sales and marketing division is comprised of the 
following positions: marketing, sales, customer service, research and development, and application 
lab. However, in response to the RFE, the Petitioner provided another organizational chart of the 
foreign entity depicting the Beneficiary as directly overseeing an investment and sales planning 
employee, a marketing and communications employee, a projects unit, a research and development 
unit, a sales and customer service unit, and a marketing and communication unit. While both charts 
depict the Beneficiary as an international development director who is directly subordinate to the 
general director, they do not consistently illustrate the same staffing hierarchy within the team or 
division that the Beneficiary oversees. 
Next, we find that the Petitioner did not adequately explain its submission of an organizational chart 
depicting the Beneficiary as the division director of marketing and communication of Bac a Bank, 
which the L Classification Supplement listed as an "affiliated company." In its RFE response 
statement, the Petitioner explained that the Beneficiary held "parallel roles" with both entities, 
claiming that "this is nothing more than to demonstrate [the Beneficiary]'s long term working 
relationship with the company's chief of conglomerate (the Chairwoman) and its financier and the 
trust the core board of management has in [the Beneficiary]." In order to meet the filing 
requirements for an individual petition, the Petitioner is required to establish that the Beneficiary has 
at least one continuous year of full-time employment abroad with its foreign affiliate. See 8 C.F.R. 
§ 214.2(1)(3)(iii). The fact that the Petitioner claims that the Beneficiary assumed a top management 
position within two entities during overlapping time periods leads us to question whether the 
Beneficiary's employment broad is sufficient to satisfy the regulatory provision that requires the 
Beneficiary to have been employed abroad on a full-time basis. 
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Matter of T-H-US, Inc. 
The Petitioner must resolve the above listed discrepancies and ambiguities in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). In light of the above, we find that the record lacks sufficient consistent and 
reliable evidence establishing that the Beneficiary met all applicable foreign employment 
requirements. 
Ill. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that the Beneficiary 
has been employed abroad and will be employed in the United States in a managerial capacity. The 
appeal will be dismissed for these reasons. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-H-US, Inc., !D# 1184578 (AAO Jun. 12, 2018) 
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