dismissed L-1A Case: Computer And Electronics Wholesale

U.S. Citizenship 
and Immigration 
Services 
In Re: 7330372 
Appeal of California Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 24, 2020 
PETITION: Form I-129, Petition for L-lA Manager or Executive 
The Petitioner operates as a computer and electronics wholesaler and exporter. It seeks to temporarily 
employ the Beneficiary as its chief operating officer under the L- lA nonimmigrant classification for 
intracompany transferees who are coming to be employed in the United States in a managerial or 
executive capacity. Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. 
§ 1101(a)(15)(L). 
The Director of the California Service Center revoked the approval of the petition concluding that the 
Petitioner did not establish, as required, that the Beneficiary would be employed in the United States 
in a managerial or executive 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. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we find that the Petitioner did not 
overcome the Director's conclusion. Therefore, 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. Id. 
Under U.S. Citizenship and Immigration Services regulations, the approval of an L-lA petition may 
be revoked on notice under six specific circumstances. 8 C.F.R. § 214.2(1)(9)(iii)(A). To properly 
revoke the approval of a petition , a director must issue a notice of intent to revoke that contains a 
detailed statement of the grounds for the revocation and the time period allowed for rebuttal. 8 C.F.R. 
§ 214.2(1)(9)(iii)(B). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Petitioner initially claimed that the Beneficiary "is experienced in executive responsibilities." 
However, on appeal, the Petitioner does not pursue its original claim and instead cites to the statutory 
definition of managerial capacity, claiming that the Beneficiary "manages" the U.S. entity and 
performs "managing duties" that involve overseeing personnel and managing the U.S. market as "an 
important function of the foreign entity." Therefore, we will evaluate the merits of the Petitioner's 
latest claim that the Beneficiary would 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 
10l(a)(44)(A) of the Act. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(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. 
Section 10l(a)(44)(A)(ii) 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(1)(1)(ii)(B)(3). 
On the other hand, the term "function manager" applies generally when a beneficiary does not 
primarily 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 G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
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). The Petitioner must also 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 description of the job duties must clearly describe the duties performed by the Beneficiary and 
indicate whether such duties are in a managerial or an executive capacity. See 8 C.F.R. 
§ 214.2(1)(3)(ii). Beyond the required description of the job duties, we examine the employing 
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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 will contribute to understanding the Beneficiary's actual 
duties and role in a business. 
A. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we 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) of the Act. 
In the petition form the Petitioner stated that it was established in 2004 and currently operates with a 
staff of four employees. However, the Petitioner provided an organizational chart depicting six 
employees, including the company president at the top of the hierarchy, followed by the Beneficiary 
who is shown as overseeing a "General Secretary," an "Administration" position, an "Adm. Director," 
and an "Accounting Director." The Petitioner did not provide job duty descriptions for the 
Beneficiary's subordinates or explain how the staffing hierarchy depicted in the organizational chart 
would support the Beneficiary and relieve him from having to allocate his time primarily to non­
managerial job duties. 
Despite initially approving the petition, upon subsequent review of the record, the Director determined 
that the Petitioner did not demonstrate eligibility and therefore issued a notice of intent to revoke 
(NOIR) based on the lack of evidence showing that the Beneficiary's U.S. employment would be in a 
managerial capacity. The Director noted that the Petitioner's organizational chart does not show any 
supervisory or professional positions and found that there is no evidence that the Petitioner either has 
subordinates of its own or that it relies on the foreign entity's staff to carry out the operational job 
duties that comprise the various functions over which the Beneficiary has oversight responsibilities. 
Although the Petitioner was afforded 30 days to provide evidence in opposition to these adverse 
findings, it did not respond to the NOIR. Therefore, the Director revoked approval of the petition 
reiterating the adverse findings that were previously cited in the NOIR. 
On appeal, the Petitioner contends that the Beneficiary '"controls the work of other professionals and 
managerial employees and manages an essential function within the organization."' The Petitioner 
does not specify what essential function the Beneficiary manages and instead states that the 
Beneficiary hired four employees - a president, a manager, a general secretary, and an accounting 
director - who possess bachelor's degrees and "assist in running" the U.S. operation. The Petitioner 
did not explain why the Beneficiary was tasked with filling the position of president, which is depicted 
as the Beneficiary's superior, nor does the Petitioner reconcile the inconsistency between the petition, 
which shows four employees, and the Petitioner's statement on appeal, which indicates that the 
Petitioner actually has five employees, including the Beneficiary. The Petitioner must resolve this 
staffing discrepancy in the record with independent, objective evidence pointing to where the truth 
lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
We also observed discrepancies between the organizational chart the Petitioner initiallY. provided and 
the staffing as described on appeal. Namely, the organizational chart indicates that I I 
assumed the position of "Administration" at the time of filing; on appeal, however, the Petitioner 
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indicates that this same individual occupies the position of "manager." Further, on appeal the 
Petitioner does not include the position of "Adm. Director," despite including this position in the 
previously submitted organizational chart. In any event, the Petitioner does not provide evidence or 
information that enhances our understanding of the Beneficiary's role within the context of the 
Petitioner's organizational structure, nor does it clarify precisely who comprises that structure. Rather, 
the Petitioner raises a new claim on appeal, asserting that it has staff in Colombia who support its U.S. 
operation by providing assistance with "most administrative duties" as well as ten employees in China 
over whom the Beneficiary is claimed to have "ultimate responsibility." Although the Petitioner offers 
a photocopied informational packet containing its organization's business profile and information 
about its "international team," neither the packet nor the Petitioner's statement on appeal specifically 
identifies the support staff outside of the United States as part of organizational hierarchy, nor does 
the Petitioner provide the position titles and job duties of this additional purported support staff 
Furthermore, we note that 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 USCIS requirements. See 
Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). In the present matter, even though 
the NOIR specifically inquired about the foreign entity's supporting role with respect to the U.S. 
operation, the Petitioner did not respond and instead offered new information on appeal, only after the 
revocation notice had been issued. The Petitioner did not explain why this information had not be 
offered sooner, nor did it provide relevant, probative, and credible evidence corroborating the new 
claim. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
In sum, the Petitioner did not provide consistent information about its support staff and offered 
insufficient evidence to demonstrate that its staffing composition at the time of filing was sufficient to 
support the Beneficiary in a top-level position and to enable him to focus primarily on performing job 
duties that are in a managerial capacity. 
B. Duties 
We will also discuss the Beneficiary's job description to determine whether the Beneficiary would 
allocate his time primarily to managerial job duties. The actual duties themselves reveal the true nature 
of the employment. 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). 
In a supporting cover letter the Petitioner stated that the Beneficiary's duties will include: increasing 
the Petitioner's financial performance and market share; aligning "work and resource management" 
with the organization's goals and philosophy; assessing key performance indicators and major 
processes to ensure consistency and best practices throughout the organization; working with human 
resources to develop "management plans and strategies"; and overseeing the company's daily 
operations. As the Petitioner did not provide an organizational chart that included a human resources 
department or showed that the Petitioner had an employee who specifically designated to carry out 
human resources job duties, the claim that the Beneficiary would work with human resources in any 
capacity appears to be inconsistent with the Petitioner's staffing at the time of filing. As noted earlier, 
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inconsistencies in the record must be resolved through the submission of independent, objective 
evidence pointing to where the truth lies. Ho, 19 I&N Dec. at 591-92. 
On appeal, the Petitioner provides an additional job description stating that the Beneficiary would 
perform the following job duties: 
• Direct the Petitioner's marketing and establish marketing goals and strategies; 
• Develop relationships with potential new clients; 
• Establish policies and objectives to ensure that the Petitioner reaches foreign and U.S. markets; 
• Review activity reports and financial statements; 
• Revise goals in line with client demands and ensure that those goals are met; 
• Supervise, evaluate, hire, fire, and promote employees; 
• Organize, direct, and conduct marketing services for the entire organization; 
• Perform activities to raise capital; and 
• Direct and supervise project developments. 
The Petitioner also states that the Beneficiary has "foll and discretionary authority" over its 
administrative and personnel matters as well as its policies and strategies. The Petitioner did not, 
however, specify any goals, strategies, or policies that the Beneficiary has set or state how much of 
the Beneficiary's time would be allocated to these intermittent activities that would likely be 
performed periodically on a need basis and would not be categorized as the Beneficiary's daily tasks. 
Likewise, the Petitioner has not established that hiring, firing, and promoting employees would be 
among the Beneficiary's daily or even weekly activities, given that the Petitioner claims to have 4-5 
employees. 
Further, the Petitioner has not established that the employees who are depicted as the Beneficiary's 
subordinates are supervisory or professional employees so that supervising them and evaluating their 
respective performances would be deemed managerial-level job duties. Despite claiming that the 
Beneficiary oversees subordinates who possess bachelor's degrees, the Petitioner has not provided 
supporting evidence to substantiate this claim. Moreover, the possession of a bachelor's degree by a 
subordinate employee does not automatically lead to the conclusion that an employee is employed in 
a professional capacity. 1 The Petitioner has not established that a bachelor's degree is actually 
necessary to perform the duties assigned to its manager, general secretary, or accounting director, 
despite what their respective position titles may suggest. 
Although the job description also indicates that the Beneficiary has discretionary authority over 
"capital raising activities" and "directing and supervising project developments," it did not clarify the 
actual tasks involved in executing these broadly stated job responsibilities, nor did it state how 
frequently the Beneficiary would perform these undefined tasks. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily managerial in nature; otherwise meeting the 
1 In evaluating whether a 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. Cf 8 C.F.R. § 204.5(k)(2) (defining 
"profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum 
requirement for entry into the occupation"). Section 10l(a)(32) of the Act, states that "[t]he term profession shall include 
but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academies, or seminaries." 
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definition of managerial capacity would simply be a matter of reiterating the regulations. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. at 1108. Furthermore, the fact that the Beneficiary will manage the 
business does not necessarily establish eligibility for classification as an intracompany transferee in a 
managerial capacity within the meaning of section 10l(a)(44)(A) 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) of the Act. Thus, while the Beneficiary may exercise discretion over the 
Petitioner's day-to-day operations and possess the requisite level of authority with respect to 
discretionary decision-making, these elements alone do not establish that the Beneficiary would be 
employed in a managerial capacity unless it shows that the duties of the proposed position would be 
primarily managerial in nature. Here, the Petitioner highlights the Beneficiary's discretionary 
authority and top placement within the organizational hierarchy, but it does not adequately describe 
the Beneficiary's proposed position or convey a meaningful understanding of the Beneficiary's 
activities in the course of their daily routine. 
Lastly, although the Petitioner makes a brief reference to the Beneficiary's management of an essential 
function, it does not elaborate or provide sufficient evidence to support this claim. 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, 2016). Absent a clear and credible breakdown of the time spent by 
the Beneficiary performing their duties, we cannot determine what proportion of the duties would be 
managerial, nor whether the Beneficiary is primarily performing the duties of a function manager. 
IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). As discussed above, the 
Petitioner does not provide a detailed delineation of the Beneficiary's duties or document what 
proportion would be managerial functions and what proportion would be non-managerial. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is 
not considered to be "primarily" employed in a managerial capacity. See, e.g, section 101(a)(44)(A) 
of the Act (requiring that one "primarily" perform the enumerated managerial duties); Matter of 
Church Scientology Int'!., 19 I&N Dec. 593,604 (Comm'r 1988). 
In light of the deficient job description the Petitioner provided and the lack of a detailed explanation 
as to how the Petitioner's existing staff would relieve the Beneficiary from having to spend his time 
primarily performing operational tasks, we are unable to conclude that the Beneficiary would be 
employed in a managerial capacity as claimed. 
ORDER: The appeal will be dismissed. 
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