dismissed L-1A Case: Chemical Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re: 21199784 
Appeal of California Service Center Decision 
Form I-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 3, 2022 
The Petitioner, a chemical manufacturer , previously employed the Beneficiary as a technology 
steward/advanced engineer under the L-1 B nonimmigrant classification for intracompany transferees 
with specialized knowledge. The Petitioner promoted the Beneficiary to technology leader and filed 
the present petition seeking to change the Beneficiary's nonimmigrant classification to L-lA. 
Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(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 California Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary has been employed abroad in a qualifying capacity. The 
matter is now before us on appeal. 
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 dismiss the appeal. 
I. LAW 
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 101 (a)(l 5)(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. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The Director determined that the Petitioner did not establish that the Beneficiary has been employed 
abroad in a capacity that was managerial, executive, or involved specialized knowledge. The 
Petitioner claims that the Beneficiary was employed abroad in a managerial capacity, and therefore 
we will restrict our analysis accordingly. 
"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. 
A petitioner must show that the beneficiary performed all four of the high-level responsibilities set 
forth in the statutory definition at section 101 ( a)( 44)(A) of the Act. If a petitioner establishes that the 
position abroad meets all four elements set f 01ih in the statutory definition, the petitioner must then 
prove that the beneficiary was 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). In determining whether the beneficiary's duties were primarily 
managerial, we consider the description of the job duties, the company's organizational structure, the 
duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the business, and any other factors that 
contribute to understanding the beneficiary's actual duties and role in the business. 
Before entering the United States in January 2019 to work for the Petitioner, the Beneficiary worked 
for the Petitioner's subsidiary in Mexico. The Petitioner claims that the Beneficiary worked in two 
consecutive managerial positions in Mexico during the three years immediately preceding his entry 
into the United States. Specifically, the Beneficiary worked as an advanced maintenance engineer 
from October 2016 to March 2018, and as a product performance engineer from March 2018 until 
January 2019. 
The regulation at 8 C.F.R. § 214.2(1)(3) requires the Petitioner to establish that, during the three years 
immediately preceding entry into the United States, the Beneficiary worked at least one continuous 
year in a capacity that was managerial, executive, or involved specialized knowledge. Because the 
Beneficiary worked as a product performance engineer for less than a year, his experience in that 
position cannot suffice, by itself, to establish the required year of qualifying employment; he would 
need to rely either entirely or in part on his earlier employment as an advanced maintenance engineer. 
Therefore, we will focus on his approximately 18 months of employment as an advanced maintenance 
engineer during the relevant three-year period. 
For the reasons discussed below, we conclude that the Petitioner has not shown that he primarily 
managed a department, subdivision, function, or component of the Petitioner's subsidiary in Mexico. 
In a letter submitted with the petition, the Petitioner stated thatthe Beneficiary performed the following 
duties as an advanced maintenance engineer, for the approximate percentages of time shown: 
• Managing and supp01iing Maintenance Supervisors and Planners and optimizing 
work orders planning and execution (15%); 
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• Maintaining healthy maintenance administrative systems, auditing them and 
following up on actions (5%); 
• Managing and reporting monthly maintenance spending and adjusting maintenance 
schedule to comply with the area budget ( 15% ); 
• Auditing maintenance work orders and notifications to verify compliance with [the 
company's] Work Process (5%); 
• Managing of personnel (staff and technicians) overtime to comply with site target 
(5%); 
• Verifying maintenance schedule completion and keeping schedule breaks below 
site target (5%); 
• Supporting the Mechanical Integrity department when performingjoint activities 
(5%); 
• Having accountability of keeping Maintenance Bill of Materials, Maintenance 
Plans and Process Information in coordination with the maintenance planner ( 5% ); 
• Coordinating with operative area leaders to schedule major maintenance and 
turnarounds (10%); 
• Approving Maintenance purchase orders over $10,000 in SAP ( 5 % ); 
• Ensuring maintenance personnel availability by managing staff and technician 
coverage during holidays and vacation periods (5%); 
• Promoting personnel recognition and continuous training (5% ); 
• Creating and following up on cost reduction initiatives and programs (10%); and 
• Ensuring equipment availability for the Utilities and Acetate departments ( 5% ). 
An accompanying statement, said to include "further detail[s]," essentially repeats the same language. 
The legal representative of the subsidiary in Mexico stated: 
As an Advanced Maintenance Engineer [the Beneficiary's] responsibilities were to 
maintain the acetate plant assets in peak condition . . . . This role combines 3 
maintenance specialties (mechanical, electrical and instrumentation) within a single 
position and thus, with 5 direct reports and 28 indirect ones, he led these teams as a 
single group. 
The same individual described "2 cost reduction projects" and "an external audit," although the 
submitted percentage figures indicate that such activities consumed only a small share of the 
Beneficiary's time. 
In a request for evidence (RFE), the Director asked for further details about the Beneficiary's specific 
duties and tasks, stating that the description submitted by the Petitioner includes "generalized duties 
and responsibilities." In response, the Petitioner resubmitted the same job description. Counsel for 
the Petitioner stated that the Beneficiary "managed and had direct responsibility for [the foreign 
employer's] Utilities and Tow Department," but the record does not corroborate this claim. 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, 17I&NDec. 503,506 (BIA 1980)). An earlierletter, signed by a 
company official, indicated that the Beneficiary "was in charge of overseeing the planning, scheduling 
and execution of maintenance jobs" within the "Utilities and Tow Department," and was "also 
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responsible for managing the capital and project budget" for that department, but did not state that the 
Beneficiary managed the department. Rather, the Beneficiary "was fully responsible for leading the 
overall direction of the ... maintenance teams under his control." 
The Director denied the petition, concluding that the Petitioner had not established that the advanced 
maintenance engineer position meets all the requirements of a managerial capacity. On appeal, the 
Petitioner asserts that the Director "erred by failing to consider ... whether the Advance Maintenance 
Engineer role qualified as a foreign 'managerial' role." But in the denial decision, the Director quoted 
the above job description in full, demonstrating the Director was aware of the position and considered 
it. The appellate brief repeats substantial portions of the RFE response, including the assertion that 
the Beneficiary "managed and had direct responsibility for [the foreign employer's] Utilities and Tow 
Department." We have already discussed the Petitioner's response to the RFE. 
In the RFE, the Director stated that the job description for the advancedmaintenance engineer position 
lacks specificity. We agree. Verbs such as "managing," "ensuring," and "supporting" refer to areas 
of responsibility but do not show what tasks the Beneficiary performed to meet those responsibilities. 
Specifics are 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. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 
41 (2d. Cir. 1990). 
There is no evidence that the Beneficiary managed the foreign subsidiary's Utilities and Tow 
Department, and the Petitioner has not shown that the maintenance activities that the Beneficiary 
oversaw amount, in themselves, to a department, subdivision, function, or component of the company. 
For the above reasons, we cannot agree with the claim that the Beneficiary "primarily managed a 
department" of the employing entity in Mexico. 
With regard to subordinate personnel, the Petitioner indicated that the Beneficiary supervised five 
subordinate employees, specifically a maintenance supervisor; two maintenance planners; a training 
coordinator; and an HV AC supervisor. The record contains no further information or evidence 
concerning the "28 indirect" reports mentioned in the letter from the Petitioner's subsidiary. The 
Petitioner indicated that the maintenance supervisor, HV AC supervisor, and one of the maintenance 
planners were professionals. The Petitioner does not explain the implied conclusion that only one of 
the two maintenance planners was a professional. Although some of these claimed subordinates have 
supervisory titles, the Petitioner did not provide any information or evidence to show whom those 
individuals supervised. 
The Petitioner initially submitted printouts of Linkedln profiles for the individuals named for three of 
those positions. Those profiles, however, are not consistent with the Petitioner's assertions. 
The claimed maintenance supervisor stated his title as "Maintenance Scheduler" on Linkedln. The 
person named as training coordinator did claim that title, but indicated that his primary responsibility 
was as a maintenance planner- a role, according to the Petitioner, assigned to two other employees. 
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The most serious discrepancy involves the individual named as the HV AC supervisor. On his 
Linkedin page, he did not claim ever to have held that title. Instead, he stated that he worked for the 
Petitioner's Mexican subsidiary until 2011, most recently as a project engineer. He further indicated 
that he has worked since 2015 for another company located in I I hundreds of miles from 
the Petitioner's subsidiary inl I 
In the RFE, the Director stated that the Petitioner had not submitted adequate evidence about the 
Beneficiary's claimed subordinates abroad. In response, the Petitioner submitted another Linkedln 
printout for the individual whom the Petitioner identified as one of two maintenance supervisors under 
the Beneficiary's authority in Mexico. This printout indicates that the individual had worked as a 
"Programmer" since 2014. 
In the denial notice, the Director concluded that the Petitioner had not provided enough evidence to 
support its claims about the Beneficiary's supervision of professional employees. On appeal, counsel 
for the Petitioner repeats assertions previously submitted in response to the RFE. 
The Petitioner claims that the Beneficiary supervised five direct subordinates when he worked in 
Mexico as an advanced maintenance engineer, but the record does not adequately support this claim. 
Some of these claimed subordinates are called supervisors, but the supervisory nature of their duties 
is not evident; the Petitioner has submitted evidence about only three of these claimed subordinates; 
and the submitted evidence (self-reported job details on the third-party Linkedin website) is not 
consistent with the Petitioner's assertions about the individuals in question. 
The Petitioner has not resolved these inconsistencies with independent, objective evidence pointing to 
where the trnth lies. Unresolved material inconsistencies may lead us to reevaluate the reliability and 
sufficiency of other evidence submitted in support of the requested immigration benefit. Matter of 
Ho, 19 I&NDec. 582, 591-92 (BIA 1988). 
Given the discrepancies and gaps in the submitted evidence, we cannot conclude that the Petitioner 
has met its burden to establish that the Beneficiary supervised the work of supervisory, managerial, or 
professional employees during his time as an advanced maintenance engineer in Mexico. 
It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of 
the Act; Matter ofOtiende, 26 I&N Dec. 127,128 (BIA 2013);MatterofSkirball Cultural Ctr., 25 
I&N Dec. 799,806 (AAO 2012); Matter of Ho, 19 I&N Dec. at 588-89; MatterofBrantigan, 11 I&N 
Dec. 493, 495 (BIA 1966); Matter of D-Y-S-C-, Adopted Decision 2019-02 (AAO Oct. 11, 2019). 
Based on the deficiencies discussed above, the Petitioner has not met its burden to establish that the 
Beneficiary worked abroad for at least one continuous year in a managerial capacity during the three 
years immediately preceding his entry into the United States. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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