dismissed L-1A Case: Cashew Trading

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-T-C-U.S. LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 17,2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a cashew kernel trading company, seeks to temporarily employ the· Beneficiary as 
general manager of its new office
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under the L-IA nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section IOI(a)(IS)(L), 8 U.S.C. 
§ II 0 I (a)( IS)(L). The L-1 A 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 Petitioner did 
not demonstrate that the new office would support the Beneficiary in a managerial or executive 
capacity within one year of approval of the petition. Further, the Director determined the Petitioner 
did not establish that it has a qualifying relationship with the Beneficiary's foreign employer. 
On appeal, the Petitioner asserts that the submitted evidence clearly establishes the Beneficiary's 
eligibility. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for theL-IA nonimmigrant visa classification in a petition involving a new 
oftlce, 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 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 aftiliatc thereof in a managerial or executive capacity. !d. 
The petitioner must submit evidence to demonstrate that the new of1ice will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
1 The tenn "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(1)(i)(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 support an executive or managerial position. 
Mauer ofT-T-C-US. LLC 
secured suflicient physical premises to house its operation and disclose the proposed nature and 
scope of the entity, its organizationaf structure, its financial goals, and the size of the U.S. 
investment. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
We will first analyze whether the Petitioner established that it will employ the Beneficiary in a 
managerial capacity within one year. 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. 
"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 
IOI(a)(44)(A) of the Act. 
In order to determine whether the Petitioner established that its new office will support a managerial 
position within one year, we will review the Beneficiary's proposed job duties, along with the 
Petitioner's business and hiring plans and evidence that the business will grow sutliciently to support 
the Beneficiary in the intended managerial capacity. The totality of the evidence must be considered 
in analyzing whether the proposed managerial position is plausible considering a petitioner's 
anticipated staffing levels and stage of development within a one-year period. See 8 C.F.R. 
§ 214.2(1)(3)(v)(C). 
A. Duties 
The Petitioner stated that the Beneficiary's foreign employer exports cashew kernels from Vietnam 
to countries around the world, including the United States, Europe, Canada, Australia, and Thailand. 
The Petitioner indicated that it has been established to sell and distribute the foreign employer's 
cashew products in the United States. 
In a support letter provided along with the petition, the Petitioner explained that the Beneficiary 
would be responsible for acquiring a location for the U.S. based business, selecting staff, and 
"completing the organization." The Petitioner also stated that the Beneficiary would be tasked with 
directing and coordinating the company's activities, planning and developing its goals and policies, 
coordinating corporate objectives and investments, managing and overseeing day to day operations, 
ensuring conformance with the company's operating procedures and regulations, and maintaining 
"international business practices and corporate compliance." The Petitioner emphasized that the 
Beneficiary would be tasked with "ensuring [that] business marketing, sales revenue and grov.'lh are 
accomplished." 
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Matter ofT- T-C- US. LLC 
In response to the Director's request for evidence (RFE), the Petitioner stated that it had already 
established "a few clients in the U.S." for its cashew kernels and noted that the Beneficiary would 
travel back and forth between the United States and the foreign employer to report to the foreign 
employer director and board. The Petitioner indicated that the Beneficiary would "control our 
expansion operations" and "meet with the clients in a professional atmosphere." The Petitioner 
explained that the Beneficiary would be "totally responsible for operating expenses as well as 
operations activities with the set goal of expansion." Again, the Petitioner emphasized that the 
Beneficiary would be devoted to ensuring that "business marketing, sales revenue and growth are 
accomplished," and indicated that his actions would "lead to the fulfillment of the expansion goals 
and profitable revenues." 
The Petitioner has submitted vague duty descriptions for the Beneficiary that do not adequately 
convey his actual proposed day-to-day tasks or establish that he would devote his time primarily to 
managerial duties within one year. The Beneficiary's duty description includes several general 
duties that could apply to any manager acting in any business or industry and they do not provide 
insight into the actual nature of his role. The Petitioner has provided few specifics related to how the 
Beneficiary's day-to-day duties fit specifically within the company's first year business plans; for 
instance, what specific actions he will take during the first year to assure that the business develops 
as necessary to support him in a managerial capacity within one year. In fact, the Beneficiary's duty 
description includes few references to the company's intended business. The Petitioner submits few 
examples of the stall the Beneficiary would select, activities he would direct and coordinate, goals 
and policies he would develop, or corporate objectives and investments he would coordinate. 
Likewise, the Petitioner does not clarify the day-to-day operations he would manage and oversee, 
operating procedures and regulations he will establish, and international business• practices and 
corporate compliance he will monitor. 
Although the Petitioner strongly emphasizes that the Beneficiary would be tasked with "ensuring 
[that] business marketing, sales revenue and growth are accomplished," it does not articulate- the 
business marketing the Beneficiary will implement or any sales revenue and growth it is targeting. 
Specifics arc clearly an important indication· of whether a beneficiary's duties are primarily 
executive or managerial in nature, otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fe din Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.D.N. Y. 1989), 
aff'd, 905 F.2d 41 (2d. Cir. 1990). 
The fact that the Beneficiary would manage the business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial 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" managerial in nature. Section 10l(A)(44)(A) of the Act. Even though the 
Beneficiary would 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 in nature 
within one year. 
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Matter ofT-T-C-US. LLC 
B. Business Plan and Projected Staffing 
The new ot1ice regulations recognize that a designated manager responsible for setting up operations 
will be engaged in a variety of low-level activities not normally performed by employees at the 
managerial level and that often the full range of managerial responsibility cannot be performed in 
that first year. However, a petitioner's evidence in support of a new office petition should 
demonstrate a realistic expectation that the enterprise is prepared to commence business operations 
and rapidly expand as it moves away from the developmental stage to full operations, where there 
would be an actual need for a manager who will primarily. perform qualifying duties. Accordingly, 
the entire record must be considered to determine whether the proposed duties are plausible 
considering a petitioner's anticipated staffing levels and stage of development within a one-year 
period. See 8 C.F.R. § 214.2(l)(3)(v)(C). 
The Petitioner submitted a projected organizational chart indicating that it planned on hiring two 
"directors" of a "sales/import department." The chart further reflected that the sales/import directors 
would supervise a warehouse manager who would, in tum, supervise an administrative assistant. 
The Petitioner indicates on appeal that it has clearly established that the Beneficiary would act in a 
managerial capacity. 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(l)(l)(ii)(B)(J). 
The Petitioner has not supported its claim that the Beneficiary would supervise managerial and 
professional employees. The duties provided for the Beneficiary's proposed subordinates are vague 
and do not convey their day-to-day tasks in the context of the company's first year of development. 
The Petitioner provided a list of non-specific duties for the sales/import directors vaguely stating that 
they would be tasked with overseeing the "import/export of all products," that they would "prepare 
weekly/monthly status reports," and "assist with marketing activities." 
In addition, the Petitioner did not provide separate duty descriptions for the warehouse manager and 
his or her assistant, but just generally. stated that the warehouse staff would be responsible for 
"timely distribution," ensuring "compliance with all regulations," and managing and leading 
workshops "for a smooth and eflicient running of operation of the warehouse." We note that the 
Petitioner had not secured warehouse space as of the date of filing and its business plan does not 
document plans to rent or purchase a warehouse in the future. Therefore, it is unclear that these 
positions would be filled during the initial year of operations. 
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Mauer o[T-T-C-U.S. LLC 
• The vague duty descriptions for the Beneficiary's subordinates do not sufticiently and credibly 
demonstrate the nature of these positions or that they would be supervisory or professional level 
positions. In fact, the Petitioner provided additional duties for the Beneficiary in the organizational 
chart indicating that he would be tasked with "approving purchases" and "authorizing marketing 
promotions," and that he ·would be responsible for ensuring "smooth warehouse operations." In 
contrast, these same duties state that the subordinate sales/import directors would only "assist with 
marketing activities," indicating that the Beneficiary will be substantially involved in the non­
qualifying operational matters of the business. Otherwise, the Petitioner does not articulate how the 
Beneficiary would be relieved from non-qualifying tasks within the first year by subordinate 
managers and professionals. 
The Petitioner also has not submitted sufficient detail regarding its business plans, information 
critical to assessing whether it is likely that the business will develop sufficiently during the first 
year. For example, the Petitioner only vaguely states that it already has clients for its cashews in the 
United States. Beyond this, it provides no details regarding its first year business plans such as when 
it plans on hiring the Beneficiary's proposed subordinates or specific actions its plans on undertaking 
to launch the business during the first year. Without a hiring plan and projected financial 
information, we cannot determine that the Petitioner intends to hire, and could feasibly pay, the 
salaries of the proposed sta!T during its initial year of operations. 
The Petitioner asserts that the Beneficiary's foreign employer has invested $30,000 in the new 
venture, but it does not outline in detail what the company's start-up costs and initial operating 
expenses will be, nor is it clear how this investment will be used to launch the business. Again, 
although the Petitioner states that the Beneficiary will ensure that "business marketing, sales revenue 
and growth are accomplished" and "expansion goals and profitable revenues" are fulfilled, it 
provides no detail regarding planned marketing or projected revenue, expansion, goals, or profits. In 
sum, the Petitioner has submitted little evidence to support that it will grow sufficiently during the 
first year to support the Beneficiary is a qualifying managerial capacity. 
On appeal, the Petitioner submits a decision of the Board of Immigration Appeals and a former 
decision of our legacy office within the· former Immigration and Naturalization Service (INS). 
However, the Petitioner does not articulate the relevancy of these decisions to the current matter. 
Indeed, the latter decision, Maller <?[Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 
1978), relates to an L-1 B specialized knowledge visa and does not involve a new office petition. 
Further, the submitted Board decision discusses the Petitioner's burden of proof. However, as we 
have addressed, the Petitioner has submitted insufficient evidence to meet its burden. It has 
submitted a vague dtity description for the Beneficiary which does not outline his proposed actions 
to launch the business during the. first year. The Petitioner also does not explain or document how 
the company will specifically develop during the first year and it has provided insufficient detail 
regarding its first year business plans to show that it would have a reasonable need for the 
Beneficiary to perform primarily managerial duties within one year. 
The record does not include sufficient probative evidence establishing that the Beneficiary will be 
relieved from performing non-qualifying duties within one year of approval of the petition. The 
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Mauer ofT-T-C-U.S. LLC 
Petitioner has not fully developed the record so that we may analyze the viability of its plans to open 
and operate a new office in the United States. 
Ill. QUALIFYING RELATIONSHIP 
The Director also denied the petition concluding that the Petitioner did not establish that it has a 
qualifying relationship with the Beneficiary's foreign employer. The Director pointed to discrepancies 
in the· submitted evidence related to the Petitioner's ownership and further emphasized that these 
documents were questionably dated after the filing the petition. 
In its appeal, the Petitioner does not specifically address this basis Tor denial or provide any additional 
evidence related to its ownership. After reviewing the evidence, we concur with the Director's decision 
that the Petitioner has not established a qualifying relationship with the foreign employer. Since the 
issue of the Beneficiary's proposed managerial capacity in the United States is dispositive of the 
Petitioner's appeal and it has not specifically objected to the Director's conclusions as to qualifying 
relationship, we will not address this issue further. Nevertheless, we note that if the Petitioner seeks 
to employ the Beneficiary in this classification in the future, it will need to submit sufficient 
evidence to establish that it has a qualifying relationship with the foreign employer. 
IV. CONCLUSION 
The appeal will be dismissed because the record does not include sufficient evidence to establish that 
the Beneficiary would act in a managerial or executive capacity within a one-year period or that the 
Petitioner has a qualifying relationship with the Beneficiary's foreign employer. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-T-C-US. LLC, ID# 1041370 (AAO Apr. 17, 2018) 
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