dismissed L-1A Case: Car Dealership

U.S. Citizenship 
and Immigration 
Services 
In Re: 7790484 
Certification of California Service Center Decision 
Form I-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC. 4, 2019 
The Petitioner, a car dealership, seeks to continue the Beneficiary's temporary employment as its finance 
manager under the L-lA nonimmigrant classification for intracompany transferees. 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 California Service Center initially denied the petition without a written decision . 
We remanded the matter to correct this error, and the Director issued a written decision, indicating 
that the record did not establish, as required, that it will employ the Beneficiary in the United States in 
a managerial or executive capacity. The Director certified the decision to us for review . 1 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will affirm the certified denial. 
I. LAW 
To establish eligibility for the L-lA 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 101(a)(15)(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. Id. 
II. ANALYSIS 
The Director denied the petition based on a finding that the Petitioner did not establish that it will 
employ the Beneficiary in the United States in a managerial or executive capacity . The Petitioner does 
not claim that the Beneficiary will be employed in an executive capacity . Therefore, we restrict our 
analysis to whether the Beneficiary will be employed in a managerial capacity . 
1 Although not required, the Petitioner's response includes a second Form 1-290B, Notice of Appeal or Motion. 
"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) of the Act. 
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 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary 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. 
When examining the claimed managerial capacity of a given beneficiary, we will look 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 in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of 
the job duties, we examine 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. If staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, we must take 
into account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. See section 10l(a)(44)(C) of the Act. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
The Petitioner initially provided the following list of the Beneficiary's responsibilities: 
• Manage the short and long term financial planning of the business 
• Establish general guidelines which must be followed and execute[ d] by employees 
• Review financial transactions and monitor budget to ensure efficient operations 
• Ensure expenditures stay within budget limitations 
• Develop pricing strategies with the goal of maximizing the firm's profits or share 
of the market while ensuring the firm's customers are satisfied 
• Oversee product development or monitor trends that indicate the need for new 
products and services 
• Review and approve annual budget, quarterly, semi-annual and annual Financial 
Statements to be presented to the President and General Manager 
• In general "run the business finances" for the corporation 
2 
Parts of the above job description appear, verbatim, in the Summary Report for Marketing Managers 
on O*NET, a database of job information sponsored by the Bureau of Labor Statistics. 2 The 
Beneficiary, however, is not a marketing manager. 
Asked to provide a more detailed job description, the Petitioner submitted a longer list of duties and 
the approximate percentage of time the Beneficiary devotes to each: 
• Develop a strategic plan to advance the company's mission and objectives and to 
promote revenue, profitability, and growth as an organization; 12% 
• Oversee the entity operations to insure cost-effective management of resources; 8% 
• Plan, develop, and implement strategies for generating resources and/or revenues 
for the company[;] 10% 
• Recommends yearly budget and prudently manages organization's resources within 
those budget guidelines according to current laws and regulations; 9% 
• Approve company operational procedures, policies, and standards; 10% 
• Review activity reports and financial statements to determine progress and status 
in attaining objectives and revise objectives and plans in accordance with current 
conditions; 8% 
• Evaluate performance of managers for compliance with established policies and 
objectives of the company and contributions in attaining objectives; 8% 
• Identify new opportunities and ideas for the company and implement them to 
increase overall sales and profitability; 5% 
• Review reports of daily sales activities and provide necessary recommendations for 
improvements; 3% 
• Hire and fire employees including sales force and office personnel[;] 2% 
• Meet with managers once a month to discuss past 30 days activities/sales, review 
goals and objectives and encourage feedback and ideas from manager for future 
growth and productivity; 2% 
• Search for opportunities of business expansion; 10% 
• Oversee product development or monitor trends that indicate the need for new 
products and services; 3% 
• Develop pricing strategies with the goal of maximizing the firm's profits or share 
of the market while ensuring the firm's customers are satisfied; 10% 
The Director found the Beneficiary's job description to be "overly broad and general." The Director 
also found some of the Beneficiary's claimed duties to be inconsistent with the company's 
organizational structure. The Director cited the following examples: 
• The Beneficiary purportedly has hiring and firing authority over sales staff: but the sales staff 
are subordinate to the purchases and sales manager, not to the Beneficiary; 
• The job description refers to "product development," with no explanation as to what products 
a used car dealership develops; and 
• The Beneficiary purportedly "evaluate[ s] performance of managers," but the organizational 
chart does not list multiple managers under the Beneficiary's authority. 
2 The report is available at https://www.onetonline.org/link/summary/l l-202 l.OO (last visited Nov. 6, 2019). 
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Beyond the Director's examples, other elements of the decision imply authority over sales, despite the 
presence of a purchases and sales manager who does not report to the Beneficiary. Other listed 
elements, such as planning strategies to increase revenue and seeking opportunities to expand, appear 
to suggest a degree of authority over the entire company, inconsistent with the Beneficiary's stated 
position in the organizational hierarchy. 
The Petitioner's organizational chart showed the following positions subordinate to the Beneficiary: 
• Assistant Manager, with one subordinate: 
o Title Clerk 
• Finance Assistant 
• Services Assistant, with five subordinates: 
o Detailing Services (three employees) 
o Automotive Services (two employees) 
Although the organizational chart showed subordinates below the assistant manager and the services 
assistant, the job descriptions for those two positions did not show supervisory or managerial 
responsibilities. Instead, the services assistant's main duties involved customer service, such as 
answering customers' questions, explaining product features, and resolving complaints. The assistant 
manager's duties involved "[i]nvoicing and collection, file keeping, analyz[ing] financial information 
and prepar[ing] financial reports." The approximate hours assigned to each of these duties left no 
further time for supervisory or managerial responsibilities. The lack of those responsibilities indicated 
that the Beneficiary is essentially the first-line supervisor of all the employees listed on his section of 
the organizational chart. First-line supervision can qualify as managerial, but only if the employees 
supervised are professionals, and the Petitioner did not show that these subordinate positions are 
professional. 
In the denial notice, the Director acknowledged that, according to the organizational chart, two of the 
Beneficiary's subordinates have subordinates of their own. The Director found, however, that the 
Petitioner had not established that those individuals are primarily managers or supervisors. 
In response to the Director's certified decision, the Petitioner submits a third version of the 
Beneficiary's job description. The newest job description is not simply a revision or refinement of 
prior submissions. Rather, it is markedly different in several ways. For example, the new description 
includes no mention of developing a strategic plan, overseeing the entity's operations, or approving 
company procedures, policies, and standards-activities previously claimed to occupy 30% of the 
Beneficiary's time. Other previously-claimed activities such as product development and pricing are 
also absent from the new job description. 
The Petitioner also submits new job descriptions for the Beneficiary's subordinates, along with tax 
documentation to confirm their employment. As with the Beneficiary's new job description, the new 
descriptions submitted for the subordinate positions differ in significant ways from the earlier versions. 
For example, the services assistant's new job description indicates that she spends 30% of her time 
coordinating license plate registrations and renewals and 10% of her time scheduling maintenance and 
repairs, neither of which appeared on the earlier version. The minimum educational requirement for 
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the finance assistant position has changed from a bachelor's degree to a "High School Diploma or 
GED." 
Counsel for the Petitioner states: "upon review with new counsel, Petitioner and Beneficiary 
discovered errors in the previous descriptions of their duties . . . . The error in the previous description 
was due to drafting errors." It is significant that, while the Petitioner's latest submission includes a 
new statement from the Petitioner, that statement makes no reference to "drafting errors" in earlier 
submissions. Therefore, the Petitioner's new statement does not corroborate counsel's narrative as to 
why the significant changes in job descriptions coincided with the hiring of a new attorney. Also, 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 
(BIA 1988) ( citing Matter of Ramirez-Sanchez, 1 7 I&N Dec. 503, 506 (BIA 1980) ). 
The president and general manager of the petitioning entity signed a number of related documents, 
including the conflicting job descriptions. That official has not directly addressed the issue or 
explained why the new job description is more credible than the earlier versions. The Petitioner has 
not resolved this discrepancy in the record with independent, objective evidence pointing to where the 
truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
A petitioner cannot offer a new position to a beneficiary, or materially change a position's title, its 
level of authority within the organizational hierarchy, or the associated job responsibilities, at this late 
stage of the proceeding. A petitioner must establish that the position offered to a beneficiary, when 
the petition was filed, merits classification as a managerial or executive position. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to applicable requirements. See 
Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). Therefore, we will give no weight 
to the new job descriptions. 
With respect to the earlier job descriptions, counsel seeks to address some of the specific points raised 
by the Director. Concerning the earlier reference to "product development," counsel states: 
Petitioner's statement should be considered broadly within the financial sense of it. 
Thus, Petitioner's reference to oversight of products or services should be interpreted 
as to monitor newer financial products and/or services, e.g. new credit and insurance 
programs, brokerage services, etc., both in an effort to provide customers with a better 
shopping experience and identify new market strategies that lead to growth. 
Counsel's assertion is speculative, general, and uncorroborated by the record. The earlier job 
description referred not to "oversight of products or services," but specifically indicated that the 
Beneficiary "[ o ]versee[ s] product development." The record does not show that the petitioning entity 
develops "credit and insurance programs [or] brokerage services." The Petitioner did not attest to 
counsel's interpretation of the above language, and the new job description does not refer to product 
development at all. 
Counsel states that the Director "improperly concluded that the Beneficiary only oversighted [sic] one 
position titled 'Assistant Manager.' . . . But . . . the Beneficiary actually oversees three other 
employees." The Director, however, did not state that the Beneficiary has only one subordinate. 
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Rather, the Director found that the Beneficiary has only one subordinate with a managerial title. This 
observation is relevant in the context of the claim that the Beneficiary would "evaluate the 
performance of managers." Two paragraphs later, the Director acknowledged the other positions 
identified as subordinate to the Beneficiary. 
Counsel maintains that the Petitioner "supervises three other employees who in tum supervise other 
employees." Organizational charts in the record consistently indicate that only two of the 
Beneficiary's subordinates (the services assistant and the assistant manager) have subordinates of their 
own. The various job descriptions submitted for those two employees show substantial operational 
duties, and even the new job description for the services assistant does not show any time allotted for 
supervisory duties. The new job description for the assistant manager includes three items that could 
be construed as relating to supervision of subordinates: 
• Oversee day-to-day operations and work oflower-level staff; 15% 
• Ensure compliance [with] company's policies and standards; 10% 
• Monitor and provide feedback to managed staff to effect improvements m 
organizational goals; 10% 
Apart from the credibility issues already discussed, the above items from the new job description are 
vague and repetitive. The Petitioner, for instance, does not explain the difference between 
"overseeing" and "monitoring" subordinates, and the phrase "ensure compliance" describes a goal 
without saying what the employee does to achieve that goal. Furthermore, the organizational charts 
in the record consistently indicate that the assistant manager's only subordinate is the title clerk. 
Therefore, the scope of any supervisory responsibilities would be limited to a small part of the 
Petitioner's business, and the Petitioner has not shown how the supervision of one title clerk could 
occupy a significant fraction of the assistant manager's time. 
For the reasons discussed above, the Petitioner has not established that it seeks to employ the 
Beneficiary in a managerial capacity under the extended petition. 
ORDER: The petition is denied. 
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