dismissed L-1A Case: Construction Equipment

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 25, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, described as a constmction equipment exporter, seeks to extend the Beneficiary's 
temporary employment as its general manager under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 
8 U.S.C. § 1101(a)(15)(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 record did not establish, as required, that the Beneficiary would be employed in a managerial 
or executive capacity under the extended petition. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred by denying 
the petition based solely on the size of the company. The Petitioner contends that the Beneficiary 
will perform primarily higher-level executive and managerial duties and supervise two subordinate 
professionals. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity , for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. 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, executive , or specialized knowledge capacity. Section I 01 (a)( 15)(L) of the 
Act. 
A petitioner seeking to extend an L-IA petition that involved a new office 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 
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evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(l)(l4)(ii). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity under the extended petition. Specifically, the Director found that 
the Petitioner did not meet its burden to provide a detailed description of the Beneficiary's proposed 
duties under the extended petition or provide sufficient information regarding the Beneficiary's 
subordinate employees' duties to demonstrate that they would relieve her from significant 
involvement in the company's day-to-day operations. 
The term "managerial capacity" is defined as "an assignment within an organization in which the 
employee primarily": 
(i) manages the organization, or a department, subdivision, function, or component 
of the organization; 
(ii) supervises and controls the \Vork of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization), or if no other employee is directly 
supervised, functions at a senior level within the organizational hierarchy or 
with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. 
Section 101(a)(44)(A) of the Act. Fmiher, "[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." !d. 
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 IOI(a)(44)(B) ofthe Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, we must take into account the reasonable needs of the organization, in light of 
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the overall purpose and stage of development of the organization. See sectio n l 0 l (a)( 44)(C) of the 
Act. 
A. Duties 
When examining the managerial or executive capacity of the Benefi ciary, we will look first to the 
Petitioner's description of the job duti es. The Petitioner's descrip tion of the job duties must clearly 
describe the duties to be perform ed by the Beneficiary and indicat e wheth er such duties are in a 
managerial or executive capacity . See 8 C.F.R. § 214.2(1)(3)(ii). 
Based on the definitions of manager ial and exec utive capacit y, 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 tha t the 
Benefic iary will be primarily engage d in managerial or executive duti es, as opposed to ordinary 
operat ional activities alongside the Petitioner's other employees. See Family inc. v. USC!S, 469 
F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
On the Form I-129 , Petition for a Nonimmigrant Worker, the Pet itioner stated that it expo1is 
cons truction equipment and had four empl oyees at the time of fi ling. The Petitioner submitted a list 
of the Beneficiary's duties as general manage r and later re-su bmitted essenti ally the same list of 
dutie s after the Director adv ised that the description was lack ing spec ifics regarding the 
Beneficiary's day-to-day task s. The duties listed in response to the Director's request for additional 
evidence were as follow s: 1 
1. Execute strategic plan by impl eme nting short and long term goals that alig n 
with the scope of service, m ission and values of the company. 10% 
2. Initiate s strategies as necess ary , accor ding with the business plan , as to employ 
new personnel , put into operation new regulations , betwe en others 5% 
3. Direct and coordinate the maiJ]or com pany activ ities including hire, supervise 
and evaluate the professio nal perform ance of the execut ives. 10% 
4. Schedule meetin gs and presentations to meet and evaluat e poten tia l suppliers 
5% 
5. Research and analyze the market in the Florida area, in order to incorpo rate new 
productive negot iation s for the company 5% 
6. Prepare and present the annually [sic] projection and global strateg ies of the 
company 5% 
7. Analyze, develop and exec ute new alliances to increase the internat iona l 
business opportunities and profitability for the company. 5% 
8. Peri odic review of financial statements and data related to the incomes and 
expenses in order to take finan cial decisions. 15% 
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The initial duty description included one additional duty ("Prepare the Business Plan for start operations in the new 
company") and some of the initial time allocations were also different. 
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9. Implement innovating techniques to ensure and improve the company goals. 
5% 
10. Monitor general operations executed in order to align procedures to the plan 
projects. 10% 
11. Direct, formulate and continuously update the company policies and procedures 
in favor ofthe financial improvement. 5% 
12. Design and apply the incentives and promotions plan of the employees and 
planning the training required. 1 0% 
13. Provide positive and constructive feedback to the personnel by coaching, 
mentoring, counseling or corrective guidance and action, as appropriate. 5% 
14. Ensure a safe work environment for employees by enforcing the execution of all 
safety programs and makes recommendations for changes as necessary. 5% 
We agree with the Director ' s determination that the submitted position description lacks sufficient 
detail and does not demonstrate that the Beneficiary will primarily perform managerial or executive 
duties under the extended petition. On appeal, the Petitioner does not address the Director's findings 
regarding the Beneficiary's job duties, and instead contends that the Director erroneously based her 
decision solely on the size of the company. 
The Beneficiary's duties are so broadly described that they could refer to any senior position in 
almost any company. The regulations require a detailed description of what this particular employee 
does on a day-to-day basis within the scope of this petitioner 's operations. It is not sufficient for the 
Petitioner to state that the Beneficiary will "direct and coordinate the malj]or company activities" 
"execute strategic plans," "initiate strategies . 
. . according with the business plan," "direct, 
formulate ... company policies and procedures," "implement techniques ... to improve company 
goals," and "monitor general operations." These responsibilities, which account for nearly half of 
the Beneficiary's time, provide very little insight into the nature of her daily tasks. 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), (4/'d, 905 
F.2d 41 (2d. Cir. 1990). 
In addition, several of the duties, without additional explanation, suggest that the Beneficiary would 
be involved in non-qualifying duties. These duties include researching and analyzing the local 
market, scheduling meetings and presentations to meet and evaluate potential suppliers, and 
"developing new alliances." The Petitioner did not provide sufficient detail to establish that these 
responsibilities reflect managerial or executive responsibilities, rather than performance of routine 
purchasing, market research or sales tasks. Moreover, the Petitioner states that the Beneficiary 
would allocate 15% of her time to reviewing financial statements and information, but it has not yet 
filled any proposed positions in its administration department and it is unclear who would actually 
compile this financial information for the Beneficiary's review. 
The statutory definition of the term "executive capacity" focuses on a person ' s elevated position 
within an organizational hierarchy, including major components or functions of the organization, and 
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that person ' s authority to direct the organization. Section 10l(a)(44)(B) of the Act. Under the 
statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. Inherent to the definition, the organization must have a subordinate 
level of managerial employees for a beneficiary to direct and they must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. One 
does not quallfy as an executive under the statute simply because one "directs" the enterprise as the 
sole managerial employee. 
Here, the Petitioner focuses on the Beneficiary 's authority over subordinates with managerial job 
titles and her overall responsibility for setting goals and policies and overseeing the company's 
operation. But without meaningful information regarding the specific tasks she will perform we 
cannot determine that executive-level duties would be her primary duties. While the Beneficiary 
may have the appropriate level of authority over the company as its senior employee, the submitted 
job description is too general to demonstrate that the Beneficiary would be primarily focused on the 
policies and goals of the company rather than on its day-to-day administrative and operational 
activities. 
B. Staffing 
Beyond the required description of the job duties, U.S. Citizenship and Immigration Services 
(USCIS) examines the claimed managerial or executive 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 record establishes that the Petitioner employed four full-time employees: the Beneficiary, a 
purchase and sales manager, an operation manager, and a customer service employee. The 
Petitioner's organizational chart showed openings for the positions of purchase assistant, 
administrative manager, administrative assistant, and accountant. 
The Petitioner has referred to the Beneficiary's position as both executive and managerial, and 
emphasized that she would supervise subordinate managers and professionals. 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. 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." 2 Section 101 (a)( 44 )(A) of the Act. If a petitioner claims that a beneficiary directly 
2 To detennine 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. Cf 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 I 0 l(a)(32) of the Act states that "[t]he term 
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super vises other employees , tho se subordinate employees must be s upervisory, professional , or 
manage rial, and the beneficiar y must have the authority to hire and fire those emp loyees, or 
recomm end those actions , and take other personnel actions. Sect ions 101 (a)( 44 )(A)(i i)-(iii) of the 
Act. 
The Petitioner submitted evidence that the purchase and sales manager as a bachelor's degree in 
business administration and provid ed a list of her duties, wh ich are mainly non-manageria l mar ket 
resea rch and sales duties. Although the Petitione r indicated that this employee would eventually 
supervi se a purchase assistant , it has not yet tilled that position. The duties attrib uted to the sales 
mana ger are very general and the Pet itioner has not established that a business degree would be 
requir ed to perform them. 
The Beneficiary's other direc t s ubordinate, the operatio n manager , also has a degree in busines s 
administration. Although the Petition er depict s the customer service employee as his subordinate on 
the orga nizational chart, his position desc ripti on doe s not includ e superviso ry duties. The ope ration 
manager ' s dutie s, like the Ben eficiary's , are high ly generalized , and do not suffic ientl y explain what 
tasks he performs with in the conte xt of this petitionin g compan y. For exa mple, his descr iption 
contai ns multiple references to his interac tions with "the managemen t team," "depat1ment heads ," a 
"chief executive officer" (in addition to th e Beneficiary's position of general manager) , and appears 
to describe an operations manag er role in a much larger and more comp lex organ ization. As we 
cannot determine what specific role he fills within the context of this business, we cannot conclude 
that the operations mana ger position requir es at least a bachelor' s degree in business. 
Overa ll, the Petitioner has not shown that the Beneficiary's subordin ate employees a re supervisory, 
professional , or managerial , as required by section I 01 (a)(44) (A)(ii) of the Act when seeking 
classification as an L-1 A m anager based on the supervis ion of person nel. 
On appeal , the Petitioner claims that the Benefic iary "perfom1 s an essential and controlli ng function 
with respect to a compl ex busin ess enter pri se." The term " functio n mana ger" applies gener ally 
when a beneficiary does not supervise or control the work of a s ubordin ate staff but instea d is 
prim arily responsible for managin g a n "esse ntial function" within the organizat ion. See section 
10l (a)(44)(A)(ii) ofthe Act. The term "esse ntial function" is not defined by statute or regulation. If 
a petitioner claims that a benefici ary will mana ge an essential function , a petiti one r must at clearly 
describe the duties to be performed in managing the essential function, or mo re specifically, identify 
the function with specificit y, articul ate the esse ntial nature of the function, a nd estab lish the 
proportion of a beneficiar y's daily duti es a ttributed to managing the esse ntial function . See 8 C.F.R. 
§ 214. 2( 1)(3)(ii). In addition , a petitio ner's description of a benefic iary's daily duties must. 
demonstrate that the beneficiary will manage the function rath er than perfor m duties rela ted to the 
function. See Maller ofZ-A-, Inc., Ado pted D ecision 2016-0 2 (AAO Apr. 14, 2016). 
profess ion 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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In this matter, the Petitioner h as not provided evidence that t he Beneficiary manages an esse ntial 
function. The Petition er submitted an overly broad job d escription that described neither the 
Benefic iary's actual duti es nor a specific function with any spec ificity. The Petitioner cannot 
estab lish her eligibilit y as a f unction m anager with a blanket cla im that she cont rols the company's 
major functions based on her role as the senior employee. The fact that the Benefic iary will manage 
or direct a business does not necessa rily esta blish eligibilit y for classification as an intracom pany 
transferee in a managerial capacity w ithin the meaning of section 101(a)(44) of the Act. As 
disc ussed, while the Benefici ary may exercise discretion over the Petitioner's day-to-day operation s 
and possess the requisite level of authority with respect to d iscret ionary decision-mak ing, the 
posit ion desc ription is insufficie nt to establish that her actua l d uties would be prima rily managerial 
in nature. 
As emphasized by the Petitioner on appeal , a com pany's size alone may not be the determi ning 
facto r in denying a n L-1 A v isa petiti on without taking i nto acco unt the reason ab le needs of the 
organization. See section 10 I (a)( 44)(C) of the Act. Howeve r, it is app ropriate for USC IS to 
consider the size of the petition ing company in co njunction with other relevant facto rs, such as the 
absence of employees who would perform the non-manager ial or non-execut ive operations of the 
company or a "shell comp any" that does not conduct business in a regul ar and conti nuous manner. 
Family, 469 F.3d 13 13; Systronics Corp. v. INS. 153 F. Supp . 2d 7, 15 (D.D.C. 200 1 ). 
As the Petitioner requeste d an extension of a new office petition, t he regu latio ns require an 
exam ination of its o rganizational struct ure and staffi ng levels. See 8 C.F.R. § 214.2(l)(l4)(i i)(D). 
The regulat ion at 8 C. F.R. § 214.2(1)(3)(v)(C) allows a "new office" operat ion no more than one year 
within the date of approva l of the petit ion to support an execut ive or manage rial position . There is 
no provisio n in USClS regulations that allows for an extens ion of this period. If a new office does 
not have the necess ary staffing to suffic ient ly relieve the beneficia ry from perform ing ope ratio nal 
and adm inistrative tasks, the peti tione r is ineligible by regulation for an extension . 
The Peti tioner claims to export cons truction equip ment but has not submitted ev ide nce related to 
these business act ivities. The Petit ioner's 2015 tax return states t hat the compan y's bus iness activity 
is who lesale of lumber and construct ion materials. Photographs of the Petitioner's warehouse show 
various sma ll shippin g boxes that do not appear t o contain construction equipment. In fact, one 
boxed item i s identifi able as a stroller. On ap pea l, the Petitioner subm its a profit and loss stateme nt 
for 201 6 indicating that i t achieved $5 17,928 in sa les revenue, but it remai ns unclear what the 
Petitio ner sells or whether it is actua lly engages in import and export activities as there is little 
evide nce of ind ividual business tran sac tions in the reco rd. The Pet itione r also states that it has 
acquired real property asset s in excess of $880 ,000 and submitted evidence that t he company 
purc hased a condom inium or office unit during its initial year of operatio n. The Petitioner did not 
prov ide any further exp lanat ion regar ding the real estate segme nt of its business and none of the 
employees have job duties that appear to re late to real estate act ivities. 
This am biguity regarding the nature of the Petit ioner's activities, when we ighed in combination with 
the lack of specific, deta iled positio n descr iptions for the Beneficia ry and the company's three other 
emp loyees, makes it difficult to evaluate the Pet itioner' s reasona ble need s and its ability to support a 
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manage rial or executive position at the end of its initial year of operations. Further, half of the 
positions on the Petitioner' s orga nizational chart remained untill ed. It is unclear who would perform 
the shippin g, packin g, and inventory duties of the vaca nt purchase ass istant position, and who is 
actually responsible for pur chasing the goods the Petition er sells, or who performs the 
admini strative, financial , import and export functions attributed to the future administrative ma nager 
position. For these reasons , we cannot determine that the Pet itioner's current staff would r elieve the 
Beneficiary from significant involvement in the day-to-day oper ations of the business. 
On appea l, the Petitioner contends that the Benefi ciary's position has all the necessa ry e lements o f a 
manage rial or executive p osition, but, again, does not sufficientl y e labo rate regard ing the nature of 
the business or the Beneficiary's actual duties. As explained above, these broad statements are not 
suffic ient to meet the Petitioner's burden . W e agree with the Director's determ ination that the 
evidence is insufficie nt to establish that the Benefic iary woul d be employed in a manager ial or 
execut ive capacity under the extended petition. 
Tll. CONC LUS ION 
The appeal must be dismissed as the Petitioner did not establish that i t will employ the Beneficiary 
in a managerial or executi ve capac ity unde r the extended petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of ID# 384944 (AAO May 25, 2017) 
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