dismissed L-1A Case: Consumer Goods/Logistics

U.S. Citizenship 
and Immigration 
Services 
InRe : 16251658 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 16, 2021 
The Petitioner seeks to export, distribute, and sell consumer goods and provide logistics services. It 
intends to temporarily employ the Beneficiary as "Chief Executive Officer" of its new office I under 
the L-lA nonimmigrant classification for intracompany transferees . See Immigration and Nationality 
Act (the Act) section 10l(a)(15)(L), 8 U.S.C. § l 10l(a)(15)(L). The L-lA classification allows a 
corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign 
employee to the United States to work temporarily in a managerial or executive capacity. 
The Director of the Texas Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that: ( 1) it secured sufficient physical premises to house the new office; and 
(2) the Beneficiary's employment abroad was 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 abroad was 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 
physical premises requirement. 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 I&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 in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 8 C.F.R. § 214.2(1)(3)(v)(B). In addition, the beneficiary must seek 
1 The term "new office" refers to an organization which has been doing business in the United States for less than one year. 
8 C.F.R. § 214.2(l)(l)(ii)(F). The regulation at 8 C.F.R. § 214 .2(1)(3)(v)(C) allows a "new office" operation no more than 
one year within the date of approval of the petition to support an executive or managerial position. 
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. 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and scope 
of the entity, its organizational structure, its financial goals, and the size of the U.S. investment. See 
generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The issue to be addressed in this decision is whether the Petitioner established that the Beneficiary 
was employed abroad in a managerial capacity. 2 
"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. 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary performed certain high-level responsibilities. Section 10l(a)(44)(A) of the Act. The 
Petitioner must also prove that the Beneficiary was primarily engaged in managerial duties, as opposed 
to ordinary operational activities alongside the foreign entity's other employees. See Family Inc. v. 
USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). 
The Petitioner's claims will be addressed in the discussion below, which will include consideration of 
the Beneficiary's job duties along with evidence of the nature of the foreign business, its staffing 
levels, and its organizational structure. 
A. Job Duties 
First, we will discuss the duties performed by the Beneficiary in his position with the foreign entity. 
We note that 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 is the foreign entity's "Executive 
Director and General Counsel" and that during his employment abroad the Beneficiary led the 
company's growth, supervised "all aspects of the organization," ensured "efficient and effective 
2 The Petitioner claims that "the [B]eneficiary primarily operated in a managerial capacity" during his employment with 
the foreign entity. As such. we will limit our discussion to the basis of the Petitioner's claim and we will not discuss 
whether the Beneficiary's foreign employment fits the definition of executive capacity. 
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attainment of sales goals," and worked with the board of directors and government officials to obtain 
notification of product registration and global listings and to enable the foreign entity's distribution of 
goods imported from the United States. 
After reviewing the record, the Director issued a request for evidence (RFE) instructing the Petitioner 
to address evidentiary deficiencies regarding the Beneficiary's employment abroad. The Petitioner 
was asked to provide a description of the Beneficiary's job duties and the percentage of time allocated 
to each listed duty. 
In response, the Petitioner provided a letter from the foreign entity's "Managing Director/CEO" stating 
that the Beneficiary was appointed "Director" in May 2018. The Petitioner did not explain its earlier 
reference to the Beneficiary as "Executive Director," nor did it establish that "Executive Director" and 
"Director" are one and the same and involve the same job duties. The CEO's letter also states that 
prior to May 2018, the Beneficiary was a shareholder and assumed the position of "Company 
Secretary/General Counsel." However, the Petitioner's initial supporting statement did not include 
"Company Secretary" as part of the Beneficiary's position title, thus creating another inconsistency 
concerning the Beneficiary's foreign position. The Petitioner must resolve these inconsistencies 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). 
The response letter also lists the following duties as part of the Beneficiary's employment abroad: 
• Designing growth and business strategies; 
• Managing client relationships and engaging in "creative prospecting and networking" to grow 
the client base; 
• Seeking new business opportunities and developing the business; 
• Supporting "management" on matters concerning the board of directors and shareholders, 
including arranging the "Executive Committee" and board meetings, and "interfacing with 
statutory and regulatory shareholders"; 
• Providing "secretarial services" and using "the statutory mandate" to maintain records 
containing the company's minutes; 
• Communicating with "auditors and regulatory examiners" on legal matters and overseeing 
"legal documentation" related to the company's international expansion effort; 
• Ensuring that the company retains "suitable local legal representatives"; and 
• Gathering "country requirements for the grant of company status" and protecting the 
company's "trade and service marks whilst maintaining all statutory registers and records as 
required by law." 
The Petitioner did not assign a percentage of time to the duties and responsibilities listed above, even 
though the list included several items that are operational in nature and do not readily fit the definition 
of managerial capacity. For instance, the list indicates that the Beneficiary was directly involved in 
communicating with clients and engaging in activities to promote and grow the business. However, 
the Petitioner did not explain how these duties are indicative of managing the organization or a division 
within the organization. Likewise, tasks such as arranging an "Executive Committee," setting up 
board meetings, and providing "secretarial services" by maintaining records of the company's meeting 
minutes, are operational or administrative in nature and do not support the claim that the Beneficiary 
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was employed in a managerial capacity. 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 10l(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). Because the Petitioner did not allocate a percentage of time to these non­
managerial job duties as instructed in the RFE, we are unable to gauge how much time the Beneficiary 
spent performing them and we therefore cannot conclude that the Beneficiary spent his time primarily 
performing job duties of a managerial nature. 
Further, several of the listed job duties are ambiguous and lack detail as to the specific underlying 
activity the Beneficiary performed. For instance, it is unclear which "legal documents" the Beneficiary 
reviewed as part of the company's international expansion, nor did the Petitioner elaborate on the 
specific actions the Beneficiary took to ensure that the company retained "suitable local legal 
representatives." Further, the Petitioner did not: clarify the nature of the Beneficiary's interactions 
with the shareholders, which includes the Beneficiary himself; explain what is meant by "statutory 
and regulatory shareholders"; or specify any actual measures that the Beneficiary took to maintain "all 
statutory registers and records" and to protect the company's interest with respect to "trade and service 
marks." Although the Petitioner indicated that the Beneficiary's position and ownership interest 
allowed him a degree of discretion in performing his job duties, the listed activities used to describe 
the Beneficiary's foreign position were vague and do not lead to a meaningful understanding of what 
the Beneficiary was actually doing in the daily course of an import and retail operation that the foreign 
entity is claimed to have operated. As previously indicated 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 ofreiterating the regulations. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. at 1108. 
In denying the petition, the Director pointed to deficiencies in the Beneficiary's job description, noting 
that the duties were brief and generalized, thereby precluding a determination of whether the 
Beneficiary was employed in a managerial capacity. 
On appeal, the Petitioner resubmits the above-referenced letter from the foreign entity's CEO, 
asserting that the letter establishes the Beneficiary's history of employment with the foreign entity, 
specifies that the Beneficiary's position was that of "executive director, equity shareholder and 
Company [S]ecretary/General Counsel," and offers a detailed description of the Beneficiary's duties 
and functions. Despite the Director's determination that the submitted job description did not include 
sufficient information about the Beneficiary's job duties, the Petitioner does not elaborate on the prior 
job description's ambiguities to further our understanding of the duties he performed. 
In sum, although the Petitioner maintains that the Beneficiary "primarily operated in a managerial 
capacity," it does not establish that the primary portion of the Beneficiary's time was spent performing 
duties of a managerial nature. 
B. Staffing 
Next, we will address the foreign entity's staffing. When staffing levels are used as a factor in 
determining whether an individual is acting in a managerial capacity, the reasonable needs of the 
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organization must be considered in light of the overall purpose and stage of development of the 
organization. See section 101(a)(44)(C) of the Act. 
The Petitioner's initial submissions did not contain information about the foreign entity's 
organizational hierarchy or staffing. The Director noted this evidentiary deficiency in the RFE and 
instructed the Petitioner to provide an organizational chart identifying the Beneficiary and his 
subordinates and illustrating the foreign entity's organizational structure and staffing levels. 
In response, the Petitioner provided an organizational chart depicting a four-tier hierarchy and the 
positions comprising the foreign entity's staff The "Board" is depicted at the top of the hierarchy, 
followed by an "MD/CEO" and "Executive Director/General Counsel" at the second tier, a finance 
manager, sales manager, and a deputy sales manager at the third tier, and six groups of various 
supervisory and non-supervisory positions comprising the fourth tier. Two of the groups from the 
fourth tier- "Sales Team 1 - Mainland" and "Sales Team 2 ~ I' - did not 
list a supervisory position, thereby indicating that these employees were likely subject to oversight by 
the sales manager or the deputy sales manager, both situated at the third tier. The four remaining 
groups were comprised of the following: (1) "HR/ Administrative Manager" overseeing a business 
development officer, two HR officers, an "Admin Officer," and two clerks; (2) "Manager~ I' 
overseeing an accountant, a cashier, and "Sales TM 1" and "Sales TM 2"; (3) "Manager 1004" 
overseeing an accountant, a clerk, a cashier, and "Sales TM 1" and "Sales TM 2"; and ( 4) "Corporate 
Services Head Logistics" overseeing legal officers "l" and "2," a procurement officer, a cleaning 
supervisor, two cleaners, a chief driver, a senior driver, and three drivers. 
The Petitioner also provided a document listing the five employees who were claimed to have reported 
directly to the Beneficiary's claimed position of "Executive Director/General Counsel." The list of 
subordinates includes a sales manager, an administrative manager, a business development officer, the 
head of corporate services, and a senior legal officer. However, the organizational chart described 
above is not consistent with this reporting structure, which indicates that four of the Beneficiary's five 
claimed subordinates are situated at the bottom tier of the hierarchy, rather than directly subordinate 
to the Beneficiary. The Petitioner did it clarify this anomaly regarding its reporting structure. The 
Petitioner also did not offer insight about the Beneficiary's managerial role, list managerial duties that 
the Beneficiary performed with respect to his claimed subordinates, or refer to the claimed 
subordinates in the Beneficiary's job description. 
In light of the deficiencies described above, we cannot conclude that either the foreign organization's 
staffing or the Beneficiary's job duties within that organization adequately demonstrate that the 
Beneficiary was employed abroad in a managerial capacity. 
ORDER: The appeal is dismissed. 
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