dismissed L-1A Case: Biotechnology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-P- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. I L 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a biotechnology research and development company engaged in the marketing and 
distribution of pharmaceutical products, seeks to temporarily employ the Beneficiary as a '"function 
manager" 1 under the L-1 A nonimmigrant classification for intracompany transferees. See 
Immigration and Nationality Act (the Act) section !Ol(a)(IS)(L), 8 U.S.C. § IIOI(a)(IS)(L). The 
L-1 A classification allows a corporation or other legal entity (including its at1iliate 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: (1) the Beneficiary has been employed abroad in a managerial 
capacity; and (2) the Beneficiary would be employed in the United States in a managerial capacity. 
On appeal, the Petitioner asserts that the Director failed to fully apply Malter o{Z-A-, Inc., Adopted 
Decision 2016-02 (AAO Apr. 14, 2016). Specifically, the Petitioner maintains that the Director did 
not consider all relevant factors in concluding that the Beneficiary"s foreign and proposed positions 
do not involve the management of an essential function. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in a capacity involving 
specialized knowledge, 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. 
Section 10l(a)(15)(L) of the Act. The petitioner must also establish that the beneficiary's prior 
education, training, and employment qualities him or her to perform the intended services in the 
United States. 8 C.F.R. § 214.2(1)(3). 
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The Petitioner also refers to the Beneficiary's proposed position as "business development manager.·· 
Matter of A-P- LLC 
"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. 
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 IOl(a)(44)(C) ofthe Act. 
II. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
In the denial decision, the Director, determined that, based on the foreign entity's organizational 
structure, the Beneficiary has been ''primarily assisting in the performance of the day to day non­
supervisory duties of the business'' and therefore cannot be considered a manager or executive. 
On appeal, the Petitioner contends that the Director did not adequately address its claim that the 
Beneficiary has been employed abroad as a function manager. and did not provide a sufficient 
explanation for the denial of the petition. 
Upon review, we agree with the Petitioner that the Director's decision did not reflect that she had 
considered all relevant evidence in concluding that that the Beneficiary did not meet this eligibility 
requirement. Rather, the Director's decision appeared to be based on the size of the to reign entity 
alone. When denying a petition, a director has an affirmative duty to explain the specific reasons for 
the denial; this duty includes informing a petitioner why the evidence did not to satisfy its burden of 
proof pursuant to section 291 of the Act. 8 C.F.R. § 103.3(a)(J )(i). 
However, for the reasons discussed below, the evidence of record is insufficient to establish that the 
Beneficiary was employed abroad in a qualifying managerial capacity. 
A. Function Manager 
When examining the managerial 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. See 8 C.F.R. § 214.2(1)(3)(ii). 
Beyond the required description of the job duties, US CIS reviews the totality of the evidence when 
examining the claimed managerial 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 
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Matter of A-P- LLC 
evidence contributing to understanding a beneficiary's actual duties and role in a business. In the 
case of a function manager with no direct subordinates, other factors considered may include a 
beneficiary's position within the organizational hierarchy, the depth of a petitioner's organizational 
structure, the scope of a beneficiary's authority and its impact on a petitioner's operations. the 
indirect supervision of employees within the scope of the function managed, and the value of the 
budgets, products, or services that a beneficiary manages. See Matter of" Z-A-. Inc .. Adopted 
Decision 2016-02 (AAO Apr. 14, 2016). 
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 staffing levels. 
The Petitioner indicated on the Form I-129 that the Beneficiary has been employed by its United 
Arab Emirates' affiliate since 200i as the business development manager for the Middle East and 
Africa. The Petitioner provided a letter from the foreign entity's chairman and Chief Executive 
Officer (CEO), who described the Beneficiary's duties abroad as follows: 
Management and Research 
• Submits weekly progress reports and ensure data is accurate 
• Forecasts business targets and ensure they are met 
• Tracks and records activity on accounts and help to close deals to meet these 
targets 
• Presents business development training and mentoring to business developers and 
other internal staff 
• Researches and develops a thorough understanding of [the petitioning 
organization's] people and capabilities 
• Recommends hires and fires 
Business Development Planning 
• Manages [the company's] business in the Biotechnology sector, identify and 
appoint licensees for the technology transfer of Biopharmaceuticals such as 
recombinant human insulin Alpha Interferon and GCSF 
• Develops business plans on behalf of [the petitioning organization) for the Middle 
East and Gulf countries and oversees its implementation 
• Prepare the annual budget for [the foreign entity] 
• Establishes joint research and development projects between [the petitioning 
organization] through appointed distributors 
2 
The Beneficiary's actual dates of employment with the foreign entity are unclear. The Petitioner provided evidence 
that the foreign affiliate was registered in UAE in July 2009, which undermines the initial claim that the Beneficiary 
joined the company in 2007 (a claim the Petitioner's chairman repeated in response to a request for evidence (RFE)). 
One version of the Beneficiary's resume indicates that she commenced employment with the Petitioner's UAE affiliate 
in 2010. In response to the RFE, the organization's director of finance indicated that the Beneficiary assumed the 
position of manager of business development in UAE in July 2011. Nevertheless, for the purposes of this petition. the 
Petitioner must show that she had one continuous year of full-time employment abroad between March 1, 2014. and the 
date of filing on March I, 2017. See 8 C.F.R. § 214.2(1)(3)(iii). 
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Malter of A-P- LLC 
• Works with the CEO of [the foreign entity] to develop business strategy in the 
Gulf countries and Middle East 
New Business Development and Client Retention 
• Locates and proposes potential business deals by contacting potential partners by 
discovering and exploring opportunities 
• Research and build relationships with new clients 
• Presents new products and services and enhance existing relationship 
• Work with technical staff and other internal colleagues to meet customer needs 
• Screens potential business deals by analyzing market strategies. deal 
requirements, potential, and tinancials, evaluates options, resolve internal 
priorities, recommends equity investments. 
The Petitioner provided a group organizational chart showing the staffing of the Petitioner. the UAE 
entity, and another affiliate in Singapore. According to the chart, the foreign entity's employees 
include the owner (a U.S. citizen who serves as chairman and CEO of all three companies). and the 
Beneficiary as business development manager. The chart also lists a "head of business 
development" in Singapore and a "business development" employee in the United States. The chart 
indicates that the three companies in the group employ a total of six people. On appeal. the 
Petitioner submits a revised organizational chart which depicts administrative contractors. an 
accountant, and an administrative position reporting to the Beneficiary in UAE. However. these 
subordinate positions are not corroborated by supporting evidence. 
In response to the Director's RFE. the Petitioner's president provided additional explanation 
regarding the Beneficiary's position abroad, noting that she allocated her time as follows: 
• Developing and managing implementation of business plans, annual budgets and 
marketing strategies (35%) 
• Identifying, liaising with and representing [the company] to various Middle 
Eastern entities and partners, including major pharmaceutical companies for out­
licensing and technology transfer ( 40% ); 
• Advising the [petitioning organization's] management team on Middle East 
regional dynamics and opportunities (20%); and 
• Recommendations for hiring and tiring as necessary (5%). 
He further stated that the Beneficiary was the only direct employee based in UAE and that she 
reported to him, with additional supervision from the group's CFO based in Singapore. He 
explained that the Beneficiary acted with significant autonomy and authority, noting that she 
identified, selected, and appointed major pharmaceutical companies in UAE and Saudi Arabia for 
out-licensing and technology transfer, contracts that were worth $22 million to the company. 
The Petitioner also provided an explanation of the ''out-licensing process'· noting that it begins with 
the Beneficiary attending national and international biotechnology meetings, subscribing to 
partnering meetings to secure face-to-face meetings with individual pharmaceutical companies. 
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Matter of A-P- LLC 
presenting the Petitioner's portfolio of products, and holding follow-up meetings to assess interest. 
The Petitioner explained that the next step was for the Beneficiary to arrange meetings with the 
petitioner's head of business development and scientific team to discuss the specific technology and 
pre-clinical development. The Beneficiary and head of business development would then submit a 
"Heads of Agreement" outlining major points and the timeline for technology transfer, license tees 
and milestones. The next stage is the formal license agreement, negotiation with corporate attorneys 
and business development team on both sides, and finally, approval by both parties' boards and 
project implementation. The Petitioner noted that this process can take three years and that once 
concluded, the Beneficiary "manages and coordinates training and set-up for the licensee and is the 
main contact for continued customer satisfaction with licensees.'' 
The Petitioner stated that the Beneficiary managed the foreign entity's business development 
department; managed all essential functions of the department and other management activities of 
the foreign af1iliate; had the authority to hire and fire and functioned at a senior level within the 
organizational hierarchy and with respect to management of business development activities; and 
exercised wide discretion over the day-to-day operations of business development activities for the 
foreign entity. 
The Petitioner also submitted excerpts of corporate meeting minutes, licensing agreements, budgets. 
trip reports, technology transfer negotiations, and other documents as evidence of the Beneficiary's 
duties abroad. 
Upon review, the Petitioner has not established that the foreign entity has employed the Beneficiary 
as a function manager. 
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 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 "( 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 of U­
lnc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
Here, the record indicates that the Beneficiary has performed a mix of managerial and non­
managerial duties and has not met its burden to show that the Beneficiary primarily managed an 
essential function. 
First, while business development can be considered an "essential function" of the organization, the 
Beneficiary, as the sole employee responsible tor the day-to-day activities of the function in her 
geographic region, has been performing operational duties that do not fall within the statutory 
definition of managerial capacity. For example, the Beneficiary's responsibilities include writing 
Matter of A-P- LLC 
weekly progress reports, tracking and recording account activity, developing a firm understanding of 
the company's capabilities, researching potential clients/licensees, developing client relationships, 
presenting information and scientific data to potential clients, offering potential clients the 
company's services, analyzing potential deals, and completing marketing projects. While such 
duties assist the company in achieving its goals and may require considerable business and technical 
expertise, the Petitioner has not shown that these are management-level tasks, rather than the sales 
and marketing tasks required to commercialize the company's products and services. The fact that 
she performs a number of these duties fairly autonomously is not an indicator that her duties are 
those of a function manager. The record indicates that the head of business development is involved 
in the licensing process once the Beneficiary has established a relationship with a potential client or 
licensee. This employee, rather than the Beneficiary, appears to function at a senior level with 
respect to the business development function. 
In addition, several tasks included in the Beneficiary's job description are poorly explained and 
therefore cannot clearly be classified as managerial in nature. For example, the Petitioner states that 
the Beneficiary forecasts business targets and ensures that they are met, but does not identify the 
tasks she performs to do so. Similarly, the Petitioner indicates that the Beneficiary trains and 
mentors "business developers and other internal staff,'' but the Petitioner identified only six staff 
members organization-wide at the time of tiling and did not identify who the Beneficiary trained or 
mentored. Also the Petitioner did not clearly explain the work the Beneficiary performs '·with 
technical staff and other internal colleagues to meet customer needs, .. and this aspect of her role is 
not sufficiently explained to be counted as a managerial task. 
The Petitioner's description of the Beneficiary's foreign duties indicates that she also performs some 
qualifying managerial duties, such as negotiating licensing and payment terms on behalf of the 
company, developing business plans and strategies for the region, establishing joint research and 
development partnerships, and preparing an annual budget. However. the Petitioner did not 
adequately document what proportion of the Beneficiary's duties abroad has been qualifying and 
what proportion has been non-qualifying. Whether the Beneficiary is a managerial employee turns 
on whether the Petitioner has sustained its burden of proving that her duties are "primarily" 
managerial. See sections 10l(a)(44)(A) and (B) of the Act. Here, the petitioner lists the 
Beneficiary's duties as including both managerial tasks and administrative or operational tasks, but 
does not quantify the time the Beneficiary spends on these different duties. For this reason. we 
cannot determine whether the Beneficiary has been primarily perforn1ing managerial duties abroad. 
See IKEA US. Inc. v. U.S. Dept. o(Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Therefore, while the Petitioner has shown that business development is an essential function within 
the organization and that she has discretion over business development activities in her assigned 
geographic region, the record does not establish that the Beneficiary primarily manages this function 
for the foreign entity, as opposed to performing the day-to-day duties of the function. Nor does the 
evidence establish that she acts at a senior level within the group· s organizational hierarchy with 
respect to this function. 
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Matt er~~ A-P- LLC 
B. Continuous Full-Time Employment Abroad 
Although not addressed in the Director ' s decision, the record lacks sutlicient evidence to show that 
the Beneficiary has at least one year of full-time continuous employment abroad in the three years 
preceding the filing of the petition. 
The Petitioner filed the Form 1-129 on March 1, 2017, and indicated on the petition that the 
Beneficiary had been in the United States in F-1 status since August 26, 2016. The Petitioner's 
president stated that the Beneficiary worked in the UAE oflice from 2007 "until she left for 
her studies on an F-1 visa in the United States in August 2016- a program /sabbatical supported by 
[the company]." He stated that the Beneficiary continues to work remotely for the foreign entity. 
However, the record does not support the President's claim that the Beneficiary worked in the UAE 
office continuously up until August 2016. The Beneficiary 's resume indicates that she previou sly 
completed English language study in in 2014, and that she completed an "intensive 
6 months course of culinary study and 600 hours of hands-on practical training in classic Pastry Arts 
techniques'' at the in California in "20 14/2015. ''3 
We acknowledge that the Petitioner has provided evidence of monthly salary and expense transfers 
to the Beneficiary ' s foreign bank account dating back to 2014. However , the Beneficiary has spent 
significantly more time as a student in the United States than she spent abroad in the three years 
preceding the filing of the petition , despite being the foreign entity's sole claimed employee. These 
circumstances raise questions as to whether her employment abroad with the foreign entity can be 
considered full-time and continuous during the relevant three-year time period. Any work the 
Beneficiary performed for the foreign entity while in the United States as a student or visitor cannot 
be counted towards her continuous employment abroad . See 8 C.F.R. § 214 .2(1)(1 )(i)(A). 
For the reasons discussed , the Petitioner has not established that the Beneficiary had one year of full­
time continuous employment abroad in a managerial capacity in the three years preceding the filing 
of the petition. 
III. U.S . EMPLOYMENT TN A MANAGERIAL CAPACITY 
The remaining issue to be addressed is whether the Petitioner established that it would employ the 
Beneficiary in the United States in a managerial capacity . 
As with the Beneficiary's employment abroad. we will review the Beneficiary's duties in context 
with the totality of the evidence to determine whether the record supports the Petitioner's claim that 
she will primarily manage an essential function. 
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USC IS records reflect that the Beneficiary was in the United States in F -I nonimmigrant student status from March 17, 
2014, until September I, 2014, in F-1 and M-1 student status from September 29,20 14, until June 10,2015, in B-2 status 
from .February. 17, 2016, _until May I, 2016. prior to entering in F-1 status in August 2016. The Beneficiary spent 699 
days 10 the United States 10 the three years preceding the filing of the petition. 
Matter of A-P- LLC 
In its initial supporting letter, the Petitioner described the Beneficiary's proposed duties as follows: 
• Manage the Business Development Division in the Biotechnology sector (60%) of 
her time) 
• Develop business plans for the Business Development Division ( 5% of her time) 
• Develop business strategies for International markets (5% of her time) 
• Prepare the budget for the Business Development Division ( 5% of her time) 
• Identify marketing opportunities in the United States and overseas 5% 
• Exercise discretion over the day-to-day operations of the Business Development 
Division (10% of her time) 
• Supervise and control the work of other employees within the Business 
Development Division (5% of her time) 
• Authority to recommend hires and tires ( 5% of her time) 
This description, although it included percentages of time the Beneficiary would allocate to various 
broad areas of responsibility, was insufticient to establish that her actual duties would be primarily 
managerial in nature. The Petitioner cannot establish that the Beneficiary will manage its business 
development function by simply stating that she will allocate more than half of her time to 
"manag[ing] the Business Development Division.'' The Petitioner did not identify the specific 
managerial tasks she would perform. Conclusory assertions regarding the Beneficiary's employment 
capacity are not sufficient. Fedin Bros. Co .. Ltd.. 724 F. Supp. at 1108 (E.D.N.Y. 1989): AFyr 
Assocs .. Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
In response to the Director's request for more detailed information regarding the Beneficiary's 
position, the Petitioner provided an expanded description of the Beneficiary's proposed duties. 
indicating that she would allocate 70% of her time to business development management. and 30% 
of her time to marketing and liaison activities. This description of the role closely resembled her 
duty description with the foreign entity, as it included a combination of manageriaL non-manageriaL 
and poorly defined duties. 
For example, the Petitioner stated that the Beneficiary would spend nearly half of her time in the 
"business development management'' area on developing, managing. and implementing business 
development strategies. This description did not assist in further defining the expected nature of her 
day-to-day tasks or establish that all her tasks in this area would be managerial in nature. While the 
Petitioner indicated that the Beneficiary would perform some qualifying duties such as hiring, firing. 
and supervising any future departmental employees and developing and implementing an annual 
budget, many of the listed duties indicate that the Beneficiary would be perfom1ing marketing and 
business development functions, rather than primarily managing them. 
Specifically, the Beneficiary would be responsible for the following non-managerial duties as part of 
her responsibility for '·business development management": researching and identifying 
pharmaceutical companies potentially interested in the biotechnology sector; developing plans for 
engaging them and making first contact; initiating and "managing'' meetings to discuss 
collaboration; booking other meetings and events; and developing materials and presentations of 
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Matter of A-P- LLC 
scientific materials. Further, many of the Beneficiary's "marketing and liaison" responsibilities 
appear to overlap with her business development responsibilities and require her to directly promote 
the Petitioner's services. In this regard, the Petitioner indicated that she will "manage identification 
of marketing opportunities," "liaise with clients to develop the terms of license agreements:' manage 
the liaison with clients, represent the Petitioner at meetings in the biopharmaceutical sector, and 
promote joint research and development with U.S. biotechnology companies by developing 
proposals and market research. 
Although the Petitioner used the term "manage" at times throughout the job description, the record 
does not support the Petitioner's claim that she will "manage'' rather than directly perform business 
development, marketing and client liaison responsibilities. Due to the nature of the business, such 
duties may be quite sophisticated and technical; however, that does not elevate the Beneficiary's 
duties to those of a manager. The Petitioner has not adequately supported its claim that someone 
other than the Beneficiary will perform the non-qualifying duties associated with marketing and 
maintaining day-to-day communications with clients and licensees. 
The Petitioner stated on the Form I-129 that it had two current employees in the United States at the 
time of filing. However, the Petitioner's initial organizational chart listed four employees - a 
chairman and CEO, a chief operating officer (COO), an administration and public relations 
employee, and a business development employee, along with the Beneficiary's proposed position. 
The Director asked the Petitioner to provide a detailed organizational chart, along with evidence 
corroborating the Petitioner's payments to all employees and contractors depicted in the chart. In 
response, the Petitioner submitted a revised chart which depicts the CEO, the COO, the 
administration and public relations employee, and the Beneficiary all on the same level, composing 
the "management team." This chart reflects that only the Beneficiary will have subordinates - the 
aforementioned business development employee and an additional employee who may be hired in 
the future. The Petitioner did not provide a job description for the Beneficiary's claimed subordinate 
or evidence corroborating its payments to any employees or contractors. As such, the Petitioner did 
not support its claim that the Beneficiary would be overseeing a direct subordinate who would 
relieve her from performing non-managerial duties associated with the business development 
function. 
The Petitioner also provided a "Timeline/Flowchart for ... Licensing" which was intended to further 
explain the Beneficiary's role relative to the company's licensing process. This chart indicates that 
the Beneficiary will manage the business development employee as well as managing the 
Petitioner's staff as a whole, "from CEO to tech experts," to ensure licensee satisfaction during the 
lifecycle of the Petitioner's relationship with potential and contracted licensees. However, because 
the Petitioner has not provided a job description or evidence of employment for any of the U.S. staff. 
its organizational chart and flow chart are not sufficient to establish how the Beneficiary would be 
required to perform primarily managerial duties associated with the marketing, business 
development, licensing, and ongoing client/licensee liaison activities. 
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Matter of A-P- LLC 
While the Beneficiary may be performing duties that are essential to the Petitioning company, we 
find that the record does not support the Petitioner's claims that the Beneficiary's actual duties will 
be primarily managerial in nature, as it has not demonstrated that she would be removed from 
significant involvement in marketing, promoting, and coordinating its provision of services. The 
Petitioner cites to unpublished and adopted decisions in which we determined that a beneficiary 
qualified for L-1 A status as a function manager; however, in the cited cases, we also determined that 
someone other than the Beneficiary was available to perform non-qualifying duties associated with 
the function managed. 
While performing non-qualifying tasks necessary to produce a product or service will not 
automatically disqualify a beneficiary as long as those tasks are not the majority of a beneficiary's 
duties, a petitioner still has the burden of establishing that a beneficiary will "primarily" perform 
managerial duties. See section IOI(a)(44) of the Act. Whether a beneficiary is an "activity'' or 
"function" manager turns in part on whether the Petitioner has sustained its burden of proving that 
their duties are "primarily" managerial. See Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO 
Apr. 14, 20 16). Here, the Petitioner has not met that burden. 
IV. CONCLUSION 
The Petitioner has not established that the Beneficiary has one year of continuous, full-time 
employment abroad in a managerial capacity in the three years preceding the tiling of the petition, or 
that the Beneficiary would be employed in the United States in a managerial capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-P- LLC, ID# 782857 (AAO Jan. II, 2018) 
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