dismissed L-1A Case: Computer Graphics

U.S. Citizenship 
and Immigration 
Services 
MATTER OF L-T- CO., LTD. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 6. 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a provider of computer graphics services, seeks to continue the Beneficiary's 
employment as its general manager under the L-1 A nonimmigrant classification for intracompany 
transferees. 1 See Immigration and Nationality Act (the Act) section 101 (a)(15)(L). 8 U.S.C. 
§ 1101(a)(l5)(L). The L-1A 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 new office extension petition concluding that 
the Petitioner did not establish, as required. that the Beneficiary would be employed in a managerial 
or executive capacity. 
On appeal, the Petitioner submits a brief claiming that the Beneficiary manages subordinates, 
delegates tasks, and oversees the company's overall growth. The Petitioner contends that it does not 
yet have the funds to hire more staff than it currently has based on its early stage of development. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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)(l5)(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 previously filed a ·'new office'' petition on the Beneficiary's behalf which was approved for the period 
April 21, 2015, through April 20, 2016. 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 of L-T- Co., Ltd. 
A petitioner seeking to extend an L-lA petition that involved a new onice must submit a statement 
of the beneficiary's duties during the previous year and under the extended petition: a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held: 
evidence of its financial status, evidence that it has been doing business for the previous year: and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary would be employed in 
the United States in a managerial or executive capacity. 
The statute defines the term "managerial capacity'' as an assignment in which an 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: has the authority to hire and fire or 
recommend those as well as other 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 
101(a)(44)(A) ofthe Act. 
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 10l(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and tire those employees. or 
recommend those actions, and take other personnel actions. 8 C.F.R. § 214.2(1)(1 )(ii)(B)(J). 
The statute defines an '·executive capacity'' as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function of 
the organization; establishes the goals and policies of the organization. component or function: 
exercises wide latitude in discretionary decision-making: and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 101(a)(44)(B) 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) of the Act. 
2 
Matter of L-T- Co., Ltd. 
A. Staffing 
USCIS reviews the totality of the record when examining a beneficiary's claimed executive capacity. 
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. 
In support ofthe Form 1-129, Petition for a Nonimmigrant Worker. the Petitioner stated that it was 
set up by its Chinese parent company for the purpose of expanding the client base and enhancing the 
services offered to existing clients. The initial supporting evidence included an organizational chart. 
which shows that the Beneficiary directly supervises a sales manager. a marketing manager. and an 
administrative manager. The chart also shows two sales representatives as the sales manager's 
subordinates, an outsourced certified public accountant (CPA) as the administrative manager's 
subordinate, and no subordinates for the marketing manager. The chart was accompanied by job 
descriptions for each of the listed positions. 
Despite the organizational chart's depiction of the administrative manager as overseeing an 
outsourced CPA, the corresponding job description of the administrative manager indicates that this 
position would''[ c ]ommunicate with" the outsourced position. but does not list any duties that would 
support the organizational chart's depiction of the administrative manager in a supervis(~ry role with 
respect to another employee. The marketing manager is not depicted on the organizational chart as 
overseeing anyone, and therefore, the organizational chart does not reflect that it is a supervisory or 
managerial position. In any event, the job description indicates that this position will carry out the 
Petitioner's marketing duties, but will not actually oversee the work of subordinate employees. 
Therefore, the record did not establish that either the marketing manager or the administrative 
manager qualifies as a supervisory or managerial employee. 2 
In a request for evidence (RFE), the Director instructed the Petitioner to describe its statling 
composition in order to determine whom the Beneficiary would oversee and who would perform the 
services offered to the Petitioner's clients. The Petitioner's response included a new organizational 
chart that contained different information about the Beneficiary's subordinates than the information 
contained in the original chart. Namely, the new chart indicated that the Beneficiary's proposed 
position would involve oversight of an overseas production department that is part of the Chinese 
parent entity. The remainder of the chart depicted marketing, administration. and sales departments. 
which were all included in the original organizational chart. As common to both charts. the 
marketing manager appears to comprise the entire marketing department. The new chart depicts two 
vacant market researcher positions and now includes two outsourced positions ~ a CPA and an 
attorney ~ in the administrative department; the sales department indicates that the sales manager 
2 We acknowledge that the organizational chart depicts the sales manager position as overseeing two subordinates: 
however, the fact that one of the three claimed subordinates is managerial, professionaL or supervisory does not lead to a 
conclusion that the Beneficiary primarily manages a manageriaL professional, or supervisory staff. 
Matter of L- T- Co., Ltd. 
position is currently vacant, but will eventually oversee a sales and a project team to be comprised of 
three sales representatives and two project assistants. respectively. 
In the denial decision, the Director correctly noted that the marketing department had no employees 
for the marketing manager to oversee and further pointed out that the administrative department's 
only in-house employee was the department manager. The Director found that the Beneficiary 
would act as a first-line supervisor, whose duties would not involve overseeing subordinates that are 
supervisory or professional employees. The Director also properly cautioned the Petitioner that it 
may not make material changes in an effort to make a deficient petition conform to USClS 
requirements. See Matter qj1zummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
On appeal, the Petitioner claims that it "had to reconfigure the structure,. of its organization, which 
experienced changes as a result of "normal layoffs," including terminating the employment of the 
sales manager, who was included in the original organizational chart. The Petitioner further 
contends that changes are to be expected within the context of a growing company. We accept that 
these types of statling changes are not uncommon in any given business and find it reasonable for an 
entity to fire and hire employees from time to time. However. we question the Petitioner's omission 
of an entire production department from the organizational chart, which was presumably submitted 
to show the Petitioner's staffing composition at the time of tiling. It is also unclear why the 
Petitioner chose not have this information reflected in the original organizational chart and why it 
did not include the production employees' job descriptions with the other employee job descriptions 
that were provided in support of the petition. It~ as the Petitioner now claims. the production 
department was part of its organization all along, it should have provided us with an organizational 
chart that accurately reflected its entire staffing composition. If USC IS finds reason to believe that 
an assertion stated in the petition is not true, USCIS may reject that assertion. S'ee. e.g. Section 
204(b) ofthe Act, 8 U.S.C. § 1154(b); Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir. 1989); Lu­
Ann Bakery Shop. Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. r. INS. 153 F. 
Supp. 2d 7, 15 (D.D.C. 2001 ). 
Furthermore, even if the Petitioner had included the production department in the original 
organizational chart, we would still be faced with the lack of overall clarity as to the logistical 
obstacles associated with managing a staff that is employed by an entirely separate entity that 
operates overseas. On appeal, the Petitioner claims that the Beneficiary would only oversee the 
work of the production department's managers, rather than the entire production statl. However, 
this claim does not explain how the Beneficiary would manage the overseas production managers 
and what daily or weekly tasks would be involved in such oversight. Nor does the Petitioner specify 
how the overseas statl would relieve the Beneficiary from having to engage in primarily 
nonmanagerial or nonexecutive job duties. Moreover, the Petitioner did not provide evidence to 
show that the foreign entity's production staff has performed or would perform work that pertains 
specifically to the U.S. organization and its clients. The Petitioner must support its asseiiions with 
relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. 369. 376 (AAO 
201 0). 
4 
Matter of L-T- Co .. Ltd. 
The record also lacks sufficient evidence to establish that the marketing manager and administrative 
manager are professional positions. 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. 3 In doing so, we focus on the level of education 
required by the position, rather than the degree held by subordinate employee. 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. 
Here, the Petitioner has not established that a bachelor's degree is actually necessary to perform the 
duties of an administrative or a marketing manager, nor is there any evidence to show that the two 
individuals who occupied these respective positions at the time of tiling actually possessed 
bachelor's degrees. 4 
Lastly, we do not question the Beneficiary's heightened level in the organization as discretionary 
authority, which the Petitioner points to on appeal. However, we find that this factor must be 
considered alongside other evidence, including the Beneficiary's job duties, which we will discuss 
below, and the scope of the organization. In doing so, we must take into account the reasonable 
needs of the organization and that a company's size alone may not be the only 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 
nonmanagerial or nonexecutive operations of the company. Family Inc. \'. USCIS, 469 F.3d 1313 
(9th Cir. 2006); Systronics Corp. v. INS. 153 F. Supp. 2d 7. 15 (D. D.C. 2001 ). 
In the present matter, the Petitioner did not establish that the subordinate staff that was in place at the 
time of filing would be sufficient to relieve the Beneficiary from significant involvement in the day­
to-day operations of its computer graphics business. As such. the Petitioner has not supported its 
claim that the Beneficiary performs primarily managerial or executive job duties or that its 
organization has a reasonable need for a managerial employee who would spend her time primarily 
managing the company and its managerial, professional, or supervisory statT. For the same reasons. 
we also find that the Petitioner has not established that the Beneficiary would primarily direct the 
management of the organization or focus on the broad policies and goals of that organization. as 
required of someone that is employed in an executive capacity. 
3 CJ 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 I 0 I (a)(32) of the Act, states 
that ''[t]he term prolession shall include but not be limited to architects, engineers, lawyers, physicians. surgeons. and 
teachers in elementary or secondary schools, colleges, academies, or seminaries." 
4 Although the Petitioner may have undergone personnel changes since the filing of the petition, any enhancements to the 
Petitioner's organizational structure that took place after the petition was filed are not considered in determining 
eligibility. The Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied 
from the time of the filing and continuing through adjudication. 8 C.F.R. § I 03.2(b)( I). 
5 
Matter qf L- T- Co .. Ltd. 
B. Duties 
When examining the managerial or executive capacity of the Beneficiary, we also 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). 
Based on the statutory definitions of managerial and executive 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 or executive duties. as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. \'. USCIS. 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World. 940 F.2d 1533. 
In support of the Form 1-129, the Petitioner provided a breakdown of the duties the Beneficiary carried 
out during the company's first year of operation and included a separate breakdown of the duties the 
Beneficiary would perform during the Petitioner's next phase of operation. The Petitioner indicated the 
following breakdown: 
• 30% of the Beneficiary's time would be allocated to overseeing its '·overall perfom1ance:· 
advising subordinate managers, and making discretionary decisions regarding matters of 
corporate policy, costs, investments, contractual agreements with business partners. and 
personnel issues; 
• 30% of the Beneficiary's time would be allocated to supervising the work of subordinate 
managers by assigning them tasks, reviewing their work schedules. and monitoring their 
respective performances; 
• 20% of the Beneficiary's time would be spent creating a financial plan, setting a budget. and 
determining which projects to fund; 
• 10% of the Beneficiary's time would be spent directing, planning. and implementing the 
Petitioner's policies, objectives, and activities; and 
• 10% of the Beneficiary's time would be spent liaising with the Chinese parent company" s 
executives. 
As discussed above, while the Petitioner also provided an organizational chart depicting three employees 
with managerial position titles as the Beneficiary's subordinates, the record does not adequately 
demonstrate that the duties of the marketing and administrative managers accurately reflect their 
respective managerial position titles. 
In the RFE, the Petitioner was instructed to provide a detailed description of the Beneficiary" s 
proposed job duties demonstrating that she would be employed in a managerial or executive 
capacity. In response, the Petitioner provided an additional duty breakdown that is somewhat similar 
to the original job description. The Petitioner stated that the Beneficiary would allocate her time as 
follows: 
Matter qf L- T- Co .. Ltd. 
• 30% percent to personnel management, which would include supervising and monitoring the 
work of managerial employees and coordinating activities among the Petitioner's 
administration, marketing, and sales departments; 
• 20% to creating a financial plan and setting a budget to decide which projects to fund based 
on these financial considerations. reviewing financial statements, and ensuring that proper 
"cost control mechanism[ s r are in place and that they are enforced by depat1ment managers: 
• 20% to developing new designs and meeting with the marketing manager to make sure 
clients are offered designs in line with current market trends, meeting with the sales manager 
to ensure timely execution of contracts, and developing new market opportunities to increase 
the client base; and 
• The remaining 30% to defining and implementing policies, negotiating contracts with ··major 
clients," and acting as chiefliaison between the Petitioner and the foreign parent entity. 
In the denial decision, the Director found that the Beneficiary would act as a first-line supervisor. 
whose duties would not involve overseeing subordinates that are supervisory or professional 
employees. 
In light of our prior observations pertaining to the Petitioner's original organizational chart and 
corresponding employee job descriptions, we agree with the Director's finding that the record does 
not demonstrate that the Beneficiary would allocate her time primarily to overseeing the work of 
supervisory, professional, or managerial employees. As such, any of the Beneficiary's tasks that are 
associated with overseeing nonsupervisory. nonprofessionaL or nonmanagerial employees would not 
be deemed as tasks performed in a managerial capacity. Likewise, a beneficiary who is tasked with 
overseeing a nonmanagerial or nonprofessional statl would not be deemed as directing the 
management of the organization and thus would also not qualify as someone who is employed in an 
executive capacity. 
We also find that the Petitioner provided an overly broad job description that does not adequately 
delineate the actual tasks the Beneficiary would carry out in the course of the Petitioner's daily 
operation. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afj"d, 905 F.2d 41 (2d. Cir. 1990). In 
the present matter, the Petitioner does not clarify what specific underlying tasks would be involved 
in making financial plans and budgets; nor is it apparent that conducting a "[p ]eriodic review and 
analysis'' of the Petitioner's financial statements. establishing operational budgets. and putting cost 
control mechanisms in place are tasks that the Beneficiary would need to perform regularly on a 
daily or weekly basis to meet the Petitioner's business needs. Likewise. the Petitioner did not 
specify what actions the Beneficiary would carry out to ensure that the company stays current with 
its design offerings and meets its contractual goals and timeframes. Reciting the Beneficiary's 
vague job responsibilities or broadly-cast business objectives is not sutlicient: as previously 
indicated, the regulations require a detailed description of the Beneficiary's daily job duties. Here. 
the Petitioner has not provided sufficient detail or explanation of the Beneficiary's activities in the 
course of their daily routine. 
Matter of L-T- Co., Ltd 
In sum, the record indicates that the Beneficiary would allocate her time, in large part, to overseeing 
a staff that was not primarily comprised of supervisory, professionaL or managerial employees at the 
time of filing. The Petitioner also provided a deficient job description that does not disclose the 
Beneficiary's actual job duties and thus precludes us from finding that the Beneficiary would spend 
the primary portion of her time performing tasks of a managerial or executive nature. 
III. CONCLUSION 
The appeal must be dismissed as the Petitioner did not establish that it will employ the Beneficiary 
in a managerial or executive capacity under the extended petition. 
ORDER: The appeal is dismissed. 
Cite as Matter c~fL-T- Co .. Ltd., ID# 748497 (AAO Nov. 6, 2017)