dismissed L-1A Case: Clothing Retail

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF E- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 28. 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, 1 which sells children's clothing manufactured by its foreign parent company. seeks to 
extend the Beneficiary's temporary employment 2 as its president under the L-1 A nonimmigrant 
classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 
10l(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 denied the petition, concluding that the record did not 
establish, as required, that the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity. 
The matter is now before us on appeal. In its appeaL the Petitioner submits additional evidence and 
asserts that the Director erred by not fully considering the company"s future plans. 
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 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. !d. 
1 
The Petitioner identified itself as '' · on the petition form and appeal form. but the record shows that the 
Petitioner's full legal name is· 
2 The Petitioner previously filed a "new office'' petition on the Beneficiary's behalf, approved for the period fi·om March 
29, 2016, until March 28, 2017. A ''new office'' is an organization that has been doing business in the United States 
through a parent, branch, affiliate, or subsidiary 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 one year within the date of approval of the petition to 
support an executive or managerial position. 
Matter (?f E- Inc. 
There are additional requirements when a petitiOner seeks to extend an L-1 A visa petition that 
involved the opening of a new office. The new petition must include evidence to show: a qualifying 
relationship still exists between the employers in the United States and abroad: the U.S. entity has 
been doing business for the previous year; and the financial status of the U.S. operation. The 
Petitioner must also submit statements describing the Beneficiary's past and intended future duties in 
the United States, and details ofthe staffing ofthe new operation. See 8 C.F.R. ~ 214.2(1)(14)(ii). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity. The Petitioner has repeatedly referred to the Beneficiary's 
position as managerial. Therefore, we restrict our analysis to whether the Beneficiary will be 
employed in a managerial, rather than executive, capacity. 3 
A managerial capacity is an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function. or component of the organization. 
and exercises discretion over the day-to-day operations of the activity or function for which the 
employee has authority. A personnel manager supervises and controls the work of other 
supervisory, professional, or managerial employees; the duties of a first-line supervisor are not 
considered managerial unless the employees supervised are professional. A personnel manager must 
also have the authority to execute or recommend personnel actions such as hiring. tiring. and 
promotions. A function manager need not directly supervise other employees. but must manage an 
essential function within the organization, or a department or subdivision of the organization, and 
function at a senior level within the organizational hierarchy or with respect to the function 
managed. See section 1 01 (a)( 44 )(A) of the 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) 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 101(a)(44)(C) ofthe Act. 
A. Duties 
When examining the managerial or executive capacity of the Beneficiary. \ve will look first to the 
Petitioner's description of the Beneficiary's job duties. The Petitioner· s description of the job duties 
3 Prior to the appeal, the Petitioner consistently referred to the Beneficiary's position as "'managerial." On appeal. the 
Petitioner states that the Beneficiary's "'day-to-day duties correspond to discretionary activities and executive level," but 
does not elaborate. This statement appears to be in response to the Director's statement in the denial notice that the 
Petitioner had not shown that the Beneficiary served ··as an executive within the first year of business." The Petitioner 
has not offered a coherent, sustained argument that it seeks to employ the Beneficiary as an executive rather than a 
manager. 
2 
Matter of E- Inc. 
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(l)(3)(ii). 
The definition of managerial capacity has two parts. First, the Petitioner must show that the 
Beneficiary will perform certain high-level responsibilities. Champion World. Inc. l'. 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. 
The Petitioner described the Beneficiary's intended duties, along with the approximate percentage of 
time the Beneficiary would devote to each responsibility: 
Managerial tasks (30%) 
• Develop a strategic plan to advance the company's mission and objectives and 
to promote revenue, profitability, and growth 
• Oversee the fiscal activities of the organization including budgeting, reporting 
and audit 
• Approve company operational procedures, policies, and standards 
• Review activity reports and financial statements to determine progress and 
status in attaining objectives and revise objectives and plans in accordance 
with current conditions 
• Recruit and oversee staff and evaluate his performances [sic] 
• Reviews reports submitted by employee to recommend approvals or to 
suggest changes 
• Represent the company as required, including attendance of important 
functions, events and public meetings 
Sales and marketing tasks (70%) 
• Develop and implement strategic marketing and sales plans and forecast to 
achieve corporate objectives for products and services 
• Develop and manage sales/marketing operating budgets 
• Direct sales forecasting activities and set performance goals accordingly 
• Develop and recommend product positing [sic], packaging, and pricing 
strategies 
• Meet with key clients, suppliers, and related parties to maintain relationships 
and negotiate and close deals 
• Review sales performances against programs, quotes and plans to determine 
effectiveness 
• Oversee and evaluate market research and adjust marketing strategy to meet 
changing market and competitive conditions 
• Directs and coordinates activities of businesses involved with buying, selling, 
or providing products of financial services such as methods of payment 
3 
Matter of E- Inc. 
The Beneficiary's job description refers to oversight or delegation of a number of functions, such as 
financial reporting and market research. The Petitioner, however, did not specify who would 
actually perform these functions. If the Beneficiary himself is performing non-managerial functions 
such as preparing financial reports and sales plans, then he has less time to devote to managerial 
activities. 
It is not clear what the Petitioner means with the assertion that the Beneficiary ''directs and 
coordinates activities of businesses involved with buying, selling, or providing products of financial 
services such as methods of payment.'' The Petitioner sells children's clothing, not "products of 
financial services." 
The description refers to multiple "businesses" that the Beneficiary "directs and coordinates," 
without identifying the other businesses. If the Petitioner copied this passage from a template job 
description, then it does not necessarily apply to the Beneficiary's job. If it does apply, then the 
Petitioner has omitted crucial information that would have shed light on the nature and scope of the 
Beneficiary's responsibilities. Also pointing to a generic template is the reference to meeting with 
·'suppliers." The Petitioner has not indicated that it sells any products other than those manufactured 
by its foreign parent company. For these reasons, we cannot determine whether the description 
accurately reflects the Beneficiary's actual duties within the scope of the Petitioner's wholesale 
clothing business. 
The fact that the Beneficiary will manage a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial capacity within the meaning of section 
IOI(a)(44) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" managerial in nature. Sections 10l(A)(44)(A) and (B) ofthe Act. While the 
Beneficiary may exercise discretion over the Petitioner's operations and possess the requisite level 
of authority as the senior member of its two-person staff: the position description alone is 
insufficient to establish that his actual duties would be primarily managerial in nature. 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record 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 
factors that will contribute to understanding a beneficiary's actual duties and role in a business. 
The statutory definition of "managerial capacity" allows for both "personnel managers'' and 
"function managers.'' See sections 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. 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) of the Act. If a petitioner claims 
4 
Matter of E- Inc. 
that a beneficiary directly supervises other employees, those subordinate employees must be 
supervisory, professional, or managerial, and the beneficiary must have the authority to hire and fire 
those employees, or recommend those actions, and take other personnel actions. Sections 
10l(a)(44)(A)(ii)-(iii) ofthe Act. 
To determine whether the Beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. C.f 8 C.F.R. § 204.5(k)(2) (defining ··profession" to mean "any occupation for which a 
United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry 
into the occupation"). Section 101 (a)(32) of the Act states that ·'[t]he term pro{ession shall include 
but not be limited to architects, engineers, lawyers. physicians, surgeons, and teachers in elementary 
or secondary schools, colleges, academies, or seminaries." 
At the time the Petitioner filed the petition, the Beneficiary had one subordinate employee, a sales 
manager, with the following job description: 
• Contact new and existing clients to discuss their needs and to explain how 
specific products and services can meet these needs; 
• Confirm orders, request dispatch of products, and balance accounts; 
• Research the details of any issues and prepare requirements to attend fairs and 
exhibitions; 
• Organize promotional events, and manage client lists and conduct promotional 
activities via email and telephone; 
• Attend meetings and report overall business relevant issues Respond [sic] to client 
complaints and comments; and 
• Research online and offline market and examine related regulations and laws 
The Petitioner stated that the sales manager held a bachelor's degree with a major in "Clothing and 
Textiles." The Petitioner did not initially document this degree, but submits evidence on appeal 
showing that the sales manager has earned a '·Bachelor of Science in Clothing and Textiles" and an 
"Associate Applied Science" in "Fashion Merchandise Management." 
What makes an occupation is a profession is that the job requires at least a bachelor's degree. If it 
does not require that degree, then it does not matter whether or not the person in that position 
happens to have a degree. Here, the Petitioner has not shown that the duties of its sales manager 
position require a bachelor's degree. 
Also, the Petitioner has not established that the sales manager position is managerial. 
Notwithstanding the word "manager" in the title, the position includes front-line sales and marketing 
duties, including cold-calling potential customers and handling orders, and also administrative tasks 
such as keeping lists of clients and coordinating shipping. 
Matter <?f E- Inc. 
The Petitioner has not shown that the Beneficiary's only subordinate is a manager or professional. 
Because the company has no other employees, that subordinate cannot be a supervisor. Therefore. 
the Petitioner has not shown that the Beneficiary was a personnel manager at the time of tiling. 
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. The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that a beneficiary will manage an essential 
function, a petitioner must clearly describe the duties to be performed in managing the essential 
function, i.e., identify the function with specificity, articulate the essential nature of the function. and 
establish the proportion of a beneficiary's daily duties dedicated to managing the essential function. 
See 8 C.F.R. § 214.2(1)(3)(ii). In addition, a petitioner's description of a beneficiary's daily duties 
must demonstrate that the beneficiary will manage the function rather than perform the duties related 
to the function. 
The Petitioner's business plan described future plans to hire additional staff in store management. 
sales, and warehouse labor. On appeal, the Petitioner states that it will employ "three managers with 
bachelor degrees or higher ... by 2019.'' Under 8 C.F.R. § 1 03.2(b)(l ). the Petitioner must establish 
eligibility at the time of filing the petition. When the Petitioner tiled the petition. it did not employ 
these workers, and therefore they were not available to perform non-qualifying functions relating to 
non-qualifying tasks such as sales, storage, and shipping. The Petitioner did not explain who 
performed many of these tasks in the absence of employees who could relieve the Beneficiary from 
having to do them himself 
The Petitioner had previously filed a petition for a new ot1ice, which allows a petitioner to rely on 
projections for the year following the approval of the petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
This one-year period cannot be extended; after a year, a petitioner is no longer a new office. After 
the approval of the initial new office petition, any future filings seeking to extend the beneficiary's 
stay as an L-1 A nonimmigrant must rest on conditions at the time of filing, rather than anticipated 
future circumstances. 
The Petitioner has established some outside support for sales activity. The Petitioner submitted a 
copy of a "Territory Sales Commission Agreement," in which a Texas company agreed to act as the 
Petitioner's exclusive sales representative in seven U.S. states. On appeal, the Petitioner claims to 
have 13 such agreements for various territories, but the Petitioner does not provide more detai Is or 
supporting evidence. The Petitioner also sells products online through wholesale clothing 
marketplaces which sell to retailers rather than to the general public. 
The sales agreements, however, do not relieve the Beneficiary of operational or administrative tasks 
other than certain aspects of sales. It is ditlicult to say precisely what the Beneficiary's remaining 
tasks are, because the Beneficiary's job description contains vague elements which. at times. do not 
appear to apply readily to the wholesale garment trade. 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. 
Matter of E- Inc. 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afl'd, 905 F.2d 41 (2d. Cir. 1990). The actual duties 
themselves reveal the true nature of the employment. !d. Therefore. reciting a beneficiary's vague 
job responsibilities or broadly-cast business objectives is not sufficient: the regulations require a 
detailed description of the beneficiary's daily job duties. 
In a new statement on appeal, the Beneficiary states that it has tens of thousands of items in 
inventory, stored in "three storage spaces." Neither the Beneficiary nor the Petitioner explains who 
directly handles this inventory: the Beneficiary specifically states that the company has not yet hired 
warehouse staff. Receiving, stocking, and shipping inventory are not the tasks of a manager, 
supervisor, or professional, and therefore the Beneficiary would not be acting as a manager if 
handles the inventory himself or supervises his only subordinate in doing so. 
A company's size alone. without taking into account the reasonable needs of the organization, may 
not be the determining factor in denying a visa petition for classification as a multinational manager 
or executive. See section 101(a)(44)(C) of the Act. However, it is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as the 
absence of employees who would perform the non-managerial or non-executive operations of the 
company. See. e.g, Family Inc .. 469 F.3d 1313; Systronics Corp. v. INS', 153 F. Supp. 2d 7. 15 
(D.D.C. 2001). 
For the reasons discussed, the Petitioner has not overcome the Director's determination. 
III. CONCLUSION 
The Petitioner did not establish that it will employ the Beneficiary in a managerial capacity. 
ORDER: The appeal .is dismissed. 
Cite as Matter ofE- Inc., ID# 654 766 (AAO Sept. 28, 20 17)