dismissed L-1A Case: Consultancy Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 14735677 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 10, 2021 
The Petitioner, a consultancy services company, seeks to extend the temporary employment of the 
Beneficiary in the position of Director of Operations under the L-lA nonimmigrant classification for 
intracompany transferees. 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 denied the petition, concluding that the record did not 
establish, as required, that: (1) the Beneficiary would be employed in a managerial or executive 
capacity in the United States, and (2) the Beneficiary has been employed abroad 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. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal because 
the Petitioner did not establish that the Beneficiary's employment in the United States would be in a 
managerial or executive capacity. Since the identified basis for denial is dispositive of the appeal, we 
decline to reach and hereby reserve the Petitioner's arguments regarding the remaining issue pertaining 
to the Beneficiary's employment abroad. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts 
and agencies are not required to make findings on issues the decision of which is unnecessary to the 
results they reach"); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to 
reach alternative issues on appeal where an applicant is otherwise ineligible). 
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 their services to the same employer 
or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. The petitioner must also 
establish that the beneficiary's prior education, training, and employment qualify him or her to perform 
the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The issue to be addressed is whether the Petitioner established that the Beneficiary would be employed 
in a managerial capacity. The Petitioner does not claim that it will employ the Beneficiary in an 
executive 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 
101(a)(44)(A) of the Act. 
When examining the managerial capacity of a given beneficiary, we will review the petitioner's 
description of the proposed position, which must clearly describe the duties to be performed by the 
beneficiary. See 8 C.F.R. § 214.2(I)(3)(ii). Beyond the required description of the job duties, we 
examine 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. Accordingly, we will discuss evidence regarding the Beneficiary's job duties 
along with evidence of the nature of the Petitioner's business, its staffing levels, and its organizational 
structure. 
To be eligible for L-lA nonimmigrant visa classification as a manager, the Petitioner must show that 
the Beneficiary will perform the high-level responsibilities set forth in the statutory definition at 
section 101(a)(44)(A)(i)-(iv) of the Act. If the Petitioner establishes that the offered position meets 
all elements set forth in the statutory definition, 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). 
The Petitioner stated that it was founded in 2000 to design and implement financially efficient country­
wide telecom networks in developing nations, and that it has since expanded its business operations 
into other domains such as power and energy, biotechnology, and secure data and analytics. Regarding 
the Beneficiary, the Petitioner stated that she has been employed as its operations director since 2017, 
and listed her primary duties as follows: 
I Continue to support and understand the operational feasibility of a market 
expansion strategy in EMEA, APAC and South America to further our companies 
whole business target; 
I Develop and earn high-value key foreign government executive relationships 
while based in the USA This location (rather than China) allows for a better and 
trusted positioning of our services by the clients; 
I Develop concrete measures to support the above tactics given the diverse 
nationality and country of domicile of several of the vendors that we deal with; 
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I Provide guidance on business and human capital requirements and lead the 
organization to succeed in this market segment; 
I Inspire company performance, instill the mission and goals, and set the stage for 
the acquisition, retention, and management of superior talent throughout the 
organization; 
I Sole responsibility for the management of the Chinese vendors, banks and 
government institutions providing financial risk and political risk insurance for 
infrastructure projects to be deployed under the guidance and on behalf of [the 
Petitioner] within the territory; 
I Responsible for the end to end implementation of any project by managing staff 
within our organization and staff within the Chinese corporations to deliver client 
side requirements from the country's relative Ministerial departments; 
I Responsible for ensuring that payments are made by clients to vendors and 
manufacturers following each milestone completion. 
The Petitioner further stated that the Beneficiary "will continue to spend a full 100% of her time on 
the Company's operations and managing professionals, who in turn manage professional staff 
employed by both the vendor and the client." In support of this assertion, the Petitioner provided the 
following chart that listed her day-to-day duties: 
Day-today job duties Percentage of 
time 100% 
Review and recommend changes to labor contracts with I I 7% 
I • Ito be acquired byl I inl I 
Assign tol I law group staff the investigation of the labor and 10% 
commercial laws and contractual obligations 
Review the labor relations rules in a German corporate entity with 10% 
labor unions 
Review and analyze with [other employees] the results of the due 5% 
diligence carried out on the partners and the companies hired by 
the investment firm offering the loan to acquire! I 
I I 
Analyze and recommend successful strategy to commercialize the 10% 
products ofl I Building this into the future 
revenue forecast ofl ;::, I 
Review with CEO the above strategy 5% 
Approve the strategy- with all my direct reports 3% 
Negotiate and review the terms of the loan agreements ensuring the 20% 
separation of defense related projects from commercial business 
witH I Law Fi rm as wel I asl I Investment 
Company 
Review the loan agreement terms with CEO; Negotiate the changes 15% 
to the terms of thj loan Agreement withl I Law Firm and 
I Investment Company 
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Reviewing and approvin the LOI and ne otiating the purchase 
price with L3 to acquire 
15% 
The Petitioner also claimed that the Beneficiary's subordinates were all professional employees, and 
provided the following information (in relevant part) regarding these individuals: 
Title Tasks Location 
Operations Operations Support I 
Executive 
Finance Ensures that loan documentation and processing I I Compliance complies with Chinese financial reporting 
Assistant 
Computer Technical support for the designed network Middle 
Systems East 
Analyst 
Computer Ensure design and seamless integration of the Middle 
Network Solution and Documentation East 
Architect 
Computer and Located in China but traveling regularly to GCC is I 
Information the liaison to ensure execution 
Systems 
Manager 
Market Daily work inspection, daily/monthly/weekly I I Research report 
Analyst 
In a request for evidence (RFE), the Director requested additional evidence demonstrating that the 
Beneficiary would be performing primarily managerial duties, noting that the Petitioner did not 
specifically articulate whether the Beneficiary's employment was primarily managerial or executive. 
In response, the Petitioner submitted a letter and additional evidence, and clarified that the 
Beneficiary's position was primarily managerial in nature. The Petitioner clarified that the Beneficiary 
and her team were res onsible for two consultancy contracts: namely the acquisition of the operations 
of the in Ghana b the groupl I and the merger and acquisition of 
the German group~~-----~ on behalf of a Chinese investment group. The Petitioner 
further claimed that the Beneficiary re-signed a continuation of consultancy contract witrl I 
under which the Beneficiary on behalf of the Petitioner will expand ~---------------' the client's ownership structure. 
The Petitioner also provided clarification on some discrepancies noted by the Director in the titles and 
positions of the Beneficiary's subordinates within the organizational hierarchy, which will be 
discussed in further detail below. The Petitioner claimed that while the Beneficiary has not hired any 
full-time staff in the U.S. or China since 2017, she has the authority to hire and fire staff, in accordance 
with Chinese labor laws, and that "HR executes this process." The Petitioner further stated that the 
Beneficiary matches staff to the consultancy tasks required in each client proposal, thereby 
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demonstrating her authority to manage the work of her subordinates. Finally, the Petitioner claimed 
that it utilized an outside company, Paychex, to manage its payroll. 
The Director denied the petition, concluding that the Petitioner had not demonstrated that the 
Beneficiary would be employed in a primarily managerial capacity. The Director noted that the 
overview of the duties provided, both initially and in response to the RFE, were too general and vague 
to identify with specificity the tasks that the Beneficiary would perform, thus precluding a finding that 
the position is primarily managerial in nature. The Director also noted that, while it claimed the 
Beneficiary had the authority to hire and fire employees, and take other personnel actions such as the 
hiring of employees, the transfer of a full-time intern, and selecting foreign consultants, the Petitioner 
had not submitted evidence to corroborate these claims. 
On appeal, 1 the Petitioner asserts that the Director's findings were erroneous. The Petitioner asserts 
that the Beneficiary is employed as a function manager, and submits arguments and additional 
evidence in support of this contention. The Petitioner asserts that it offers vulnerability assessment 
consultancy services and resells pertinent Network Security products to solve identified vulnerability 
issues, and that the Beneficiary's role as functional manager of its telecom and biotech projects is a 
clearly defined activity that demonstrates her employment is primarily managerial in nature. 
After reviewing the record and the assertions of the Petitioner on appeal, we concur with the Director's 
conclusions. Preliminarily, we note that the Petitioner abandons its previous assertion that the 
Beneficiary was acting as a personnel manager based on her supervision of subordinate professionals, 
and provides arguments solely in support of its assertion that the Beneficiary will serve as a function 
manager. The Petitioner indicates that the Beneficiary's primary responsibilities will be divided 
equally between developing key foreign government relationships to support and understand the 
operational feasibility of Telecom and Biotech market expansion (50%) and managing the end to end 
implementation of all Telecom and Biotech projects. (50%). It also provides a revised statement of 
duties along with a new chart of duties that introduces new tasks and alters the percentages of time the 
Beneficiary would devote to day-to-day responsibilities. The Petitioner also provides a new 
organizational chart on appeal, which modifies its claimed organizational structure. 
On appeal, a petitioner cannot offer a new position to a beneficiary, or materially change a position's 
title, its level of authority within the organizational hierarchy, or the associated job responsibilities. 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 l&N Dec. 
248, 249 (Reg'I Comm'r 1978). The Petitioner attempts to revise the associated duties of the 
Beneficiary's position on appeal in an apparent attempt to overcome the deficiencies noted by the 
Director. 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 l&N Dec. 169, 176 {Assoc. 
Comm'r 1998). We note that the Petitioner was afforded the opportunity to supplement the record 
with additional details regarding the position in response to the RFE; however, the Petitioner simply 
resubmitted its prior statement of duties with additional clarifications regarding the duties of the 
1 We note that the Petitioner's submission on appeal is entitled "Motion to Reopen and/or Reconsider." The Petitioner, 
however, indicated on the Form 1-290B, Notice of Appeal or Motion, that it was filing an appeal of the Director's adverse 
decision dated August 4, 2020. Therefore, we will treat the submission as an appeal despite the title used by the Petitioner. 
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Beneficiary's subordinates. We therefore have evaluated the record based on the duties of the position 
and the Petitioner's organizational structure as stated in the record prior to the Director's adverse 
decision and, upon review, determine that its organizational structure, coupled with the generalized 
list of the Beneficiary's duties, does not support a finding that the Beneficiary will be employed in a 
primarily managerial capacity. 2 
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. 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). A beneficiary that supervises others may also 
qualify as a function manager. Id. 
In this matter, the Petitioner has not provided sufficient evidence that the Beneficiary manages an 
essential function. In its initial supporting documentation, the Petitioner indicated that the Beneficiary 
would be acting as a personnel manager by virtue of her oversight of six professional employees (four 
in China and two in the Middle East). The Petitioner stated that the Beneficiary would supervise these 
employees by assigning them to specific projects that required consultancy tasks that matched their 
level of proficiency. Upon review of the stated duties, however, we note the Petitioner's claims that 
the Beneficiary would "negotiate and review the terms of the loan agreements," "review the loan 
agreement terms with the CEO" and negotiate changes to the loan terms, and negotiate the purchase 
price for the acquisition ofl l The Petitioner also claimed that the Beneficiary 
would exercise "sole responsibi I ity for the management of the Chinese vendors, banks and government 
institutions providing financial risk and political risk insurance for infrastructure projects" to be 
implemented by the Petitioner. The duties suggest that the Beneficiary is directly engaged in the 
acquisition and negotiation of contracts and loans on behalf of both the Petitioner, its vendors, and its 
clients. Based on these statements alone, it appears that the Beneficiary will be performing the tasks 
necessary to negotiate and acquire its telecom and biotech projects as opposed to managing the 
function that is responsible for the projects. 
Further, while the stated duties of the Beneficiary provide a general overview of the requirements of 
her position, it is unclear exactly what the Beneficiary will do on a day-to-day basis, and how she will 
2 The new organizational chart submitted on appeal modifies the organizational structure of the Petitioner. According to 
the new chart, the Beneficiary directly supervises seven subordinate employees, some of whom supervise subordinate staff 
beneath them. The new chart introduces a logistics manager, an associate director, a senior project manager, and a project 
manager, and eliminates the previously identified positions of computer systems analyst/architect, computer network 
architect, and computer and information systems manager. This new chart, however, will not be considered. As discussed 
above, a petitioner cannot materially change a position's title, its level of authority within the organizational hierarchy, or 
the associated job responsibilities on appeal, and 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 l&N Dec. at 
249. 
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primarily manage the various contracts of the Petitioner as opposed to engaging in tasks that equate to 
performing or contributing to the Petitioner's acquisition of such projects. The Petitioner indicates 
that there are no U.S. employees to support the Beneficiary, and that all of the individuals that will 
relieve her from performing non-qualifying operational duties are based abroad. While the Petitioner 
identified the subordinate employees by title and tasks, we note the absence of personnel in the areas 
of sales, clerical, and human resources, thus raising questions regarding the manner in which the 
administrative and operational tasks of the Petitioner will be accomplished. Although the Petitioner 
claims that it utilizes the outside company Paychex for payroll management, no documentation to 
support this assertion was submitted, and the presence of such a company within the Petitioner's 
organization appears moot given the U.S. office has no employees other than the Beneficiary. 
The Petitioner's description of duties is insufficiently detailed to understand the Beneficiary's role 
within the U.S. organization and that the actual duties are managerial functions and not primarily 
administrative and operational tasks. As noted above, the Petitioner indicated that the Beneficiary will 
negotiate and review the terms of loan agreements and purchase pricing for the Petitioner's 
acquisitions, which are not representative of tasks associated with a function manager that manages, 
rather than performs, the tasks necessary to manage a company's portfolio of projects. Moreover, the 
Petitioner's U.S. organizational structure is devoid of subordinate employees, and the overall 
organizational structure of the Petitioner does not identify any individuals responsible for sales or 
contract negotiations. For example, in response to the RFE, the Petitioner clarified that it employed 
an operations executive, a financial compliance assistant, a computer systems analyst, a computer 
network architect, a computer and information systems manager, and a market research analyst, all of 
whom are based abroad either inl lor the Middle East. Based on this organizational structure, 
it does not appear that the Petitioner employs sufficient personnel to relieve the Beneficiary from 
performing non-qualifying duties. For example, three of the six identified employees provide 
computer-based services, but the manner in which such services support the Beneficiary and relieve 
her from performing non-qualifying duties is unclear. 
Here, despite abandoning its claim that the Beneficiary is a personnel manager, the claim that she 
qualifies as a function manager relies heavily on the services of subordinate employees to carry out 
the business development function of the Petitioner. Although the Petitioner claims that the 
foreign-based employees will carry out the operational and administrative tasks of the company, these 
staff members are not in the United States performing these tasks, and the extent to which they support 
the U.S. entity either administratively and/or operationally has not been clearly defined. As recognized 
in Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016), personnel employed by a 
related entity may be considered in the analysis of whether the Beneficiary is relieved from performing 
day-to-day non-managerial tasks. In this matter, however, the Petitioner does not provide sufficient 
evidence to establish that the individuals on the foreign teams relieve the Beneficiary from performing 
the basic operational and administrative tasks necessary to continue the operations of the Petitioner. 
The Petitioner does not provide sufficient evidence establishing that the foreign-based employees 
perform the U.S. sales, administrative, and/or operational tasks necessary for the Petitioner's business 
development. Moreover, the Petitioner does not articulate who actually performs the routine 
day-to-day operational and administrative tasks of the business. Further, the Petitioner has not 
sufficiently corroborated how the Beneficiary supervises or delegates duties to these subordinates to 
establish that the Beneficiary is relieved from performing non-qualifying tasks. The Petitioner has not 
demonstrated that the Beneficiary will primarily manage an essential function. Moreover, the 
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Petitioner has not established that the Beneficiary will manage, as opposed to perform, the operational 
and administrative tasks of the organization. 
It is the Petitioner's burden to clearly describe the proposed duties and to establish that the 
Beneficiary's actual duties would be primarily managerial in nature. 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. The actual duties themselves will reveal the 
true nature of the employment. Fedin Bros.,724 F. Supp. at 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 
(2d. Cir. 1990). Here, the Petitioner has not provided the necessary detail or an adequate explanation 
of the Beneficiary's proposed activities in the course of her daily routine, in light of the Petitioner's 
current organizational structure. 
Further, although we do not expect the Petitioner to detail and document every managerial task 
performed by the Beneficiary, the lack of detail and credible documentation related to her asserted 
managerial duties is noteworthy since it claims she has been acting in this role in the United States for 
approximately three years prior to the date the petition was filed. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily managerial in nature, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. Id. While it appears that managing 
the various projects of the Petitioner is an essential function, the Petitioner's description of the 
Beneficiary's duties, coupled with the deficiencies in its organizational structure, do not establish that 
she will primarily manage that function, as opposed to engaging in sales, contract negotiation, vendor 
oversight, and other non-managerial services related to that function. Again, the Petitioner indicated 
that a typical task of the Beneficiary included loan term and purchase price negotiations for various 
acquisitions, as well as management of the Chinese vendors. The claim that she will directly engage 
in such tasks, and the absence of employees to perform or assist with these underlying tasks, suggests 
that she will be directly involved in the work required to secure new contract and projects and achieve 
the Petitioner's business goals. The actual duties themselves reveal the true nature of the employment. 
Id. 
While performing non-qualifying tasks necessary to produce a product or service will not 
automatically disqualify a beneficiary as long as those tasks are not the majority of a beneficiary's 
duties, a petitioner still has the burden of establishing that a beneficiary will "primarily" perform 
managerial duties. See section 101(a)(44)(A) of the Act. Whether a beneficiary is a "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. 
The record as constituted does not demonstrate that the Beneficiary will primarily perform the claimed 
duties stated by the Petitioner, and the current organizational structure of the Petitioner strongly 
suggests that the Petitioner does not possess the organizational complexity to effectively support the 
Beneficiary in a primarily managerial position. The Petitioner's description of duties and supporting 
documentation suggests her primary involvement in the non-qualifying operational aspects of the 
business, such as direct involvement in negotiation with clients and lenders. By comparison, there is 
no supporting documentation to corroborate that the Beneficiary primarily manages an essential 
function or that she primarily delegates non-qualifying tasks to her claimed subordinates. Therefore, 
the Petitioner did not adequately demonstrate that the Beneficiary primarily manages a function rather 
8 
than performed it. The Petitioner has not sufficiently established that the Beneficiary qualifies as a 
function manager. 
The claim that a beneficiary will manage or direct a business does not necessarily establish eligibility 
for classification as an intracompany transferee in a managerial capacity within the meaning of section 
101(a)(44) of the Act. By statute, eligibility for this classification requires that the duties of a position 
be "primarily" executive or managerial. Here, the Petitioner indicates that the Beneficiary will 
exercise discretion over the Petitioner's various contracts in the areas of telecom and biotech, and 
possesses the requisite level of authority with respect to discretionary decision-making and personnel 
matters. However, due to the deficiencies discussed, the submitted position descriptions do not 
establish that her actual duties would be primarily managerial in nature. 
Overall, the record does not contain sufficient evidence regarding the Beneficiary's proposed role or 
the roles of her subordinates to establish that she would primarily perform qualifying managerial 
duties. Accordingly, the Petitioner has not established that she would be employed in a managerial 
capacity as defined at section 101(a)(44)(A) of the Act. 
ORDER: The appeal is dismissed. 
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