dismissed L-1A Case: Cosmetics Wholesale

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-USA LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FER 27.2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. a cosmetic and skin care wholesaler. seeks to continue the Beneficiary· s employment 
as its business development manager under the L-1 A nonimmigrant classification for intracompany 
transferees.
1 
See Immigration and Nationality Act (the Act) section 101(a)(I5)(L). 8 U.S.C. 
~ ll0l(a)(l5)(L). TheL-IA classification allows a corporation or other legal entity (including its 
attiliate 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 California Service Center denied the new ottice petition concluding that the 
Petitioner 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 disputes the Director" s decision. contending that the BencticiaJ-y' s 
proposed employment fits the criteria of managerial and executive capacity. 
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 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 seck 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 tiled a "new office .. petition on the Beneliciary·s behalf which was approved f(lr the period 
November 3. 2015. until November 2. 2016. A "new otlice .. 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)( 1 )(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 o(M-US'A LLC 
A petitioner seeking to extend an L-1 A 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 statling 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). 
"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 
\OI(a)(44)(A) ofthe Act. 
"Executive capacity"' means an assignment within an organization in which the employee primarily 
directs the management of the organization or a mqjor 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 statling 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) takes into account the 
reasonable needs of the organization. in light of the overall purpose and stage of development of the 
organization. See section IO\(a)(44)(C) ofthe Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
In this matter, the Petitioner claims that the Beneficiary's proposed position is both managerial and 
executive. The Director found that the Petitioner did not establish that the Beneticiary·s proposed 
position qualities as a position that is either in a managerial or an executive capacity. 
When examining the managerial or executive capacity of a given beneficiary. we will 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). Beyond the required description of 
the job duties, users examines 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. 
2 
Matter of M-USA LLC' 
Based on the statutory definitions of managerial and executive capacity. the Petitioner must first 
show that the Beneficiary will perform certain high-level responsibilities. C 'hampion World. Inc. r. 
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. r. US CIS. 
469 F.3d 1313. 1316 (9th Cir. 2006); Champion World. 940 F.2d 1533. 
A. Managerial Capacity 
First we will address the Petitioner's claim that the Beneficiary would be employed in a managerial 
capacity. 
I. Duties 
The Petitioner filed the petition claiming two employees and a gross income of nearly $200.000. In a 
supporting cover letter, the Petitioner stated that the Beneficiary's first year responsibilities included 
setting up warehouse operations. managing and dispatching online orders. establishing a customer base. 
negotiating with retailers and manufacturers. and hiring a warehouse manager. The Petitioner stated that 
after its initial year of operation the Beneticiary will be responsible for getting a larger warehouse to store 
more inventory, hiring a national sales team. identifying and meeting the Petitioner's stafting needs by 
hiring more employees as the company expands, and carrying out the Petitioner's marketing and 
advertising initiatives to increase brand awareness. The Petitioner provided another prospective list of 
duties, claiming that the Beneficiary's position would eventually transition as the company expands its 
retail operation; it did not, however. provide a timeline for the expansion or indicate that the Beneficiary 
would necessarily perfonn the listed duties under an approved petition. 
In response to a request for evidence (RFE). the Petitioner provided a statement in which it reiterated 
the original job description and again listed the duties the Beneficiary would perform sometime in 
the future under an expanded business and stafting operation. The Petitioner did not state precisely 
when it expects to undergo the expansion or explain how it plans to relieve the Beneficiary from 
having to primarily carry out non-managerial job duties under its current operating conditions. 
In the denial decision. the Director noted that the Petitioner did not assign time constraints to the 
Beneficiary's job duties and concluded that the job description did not establish that the Beneficiary 
would primarily perform tasks of a managerial or executive nature. This conclusion was based on 
the Director's analysis of duties that the Petitioner stated the Beneficiary would perform ''[o]nce 
additional retail stores are acquired and [a] sales team is in place." 
Upon review, we find that the Director should not have focused on job duties that the Beneficiary 
was projected to perform at an undetermined time in the future. only after the Petitioner expands its 
business operation and support statl; however, we agree with the Director that the Petitioner did not 
provide sufficient evidence to establish that the Beneficiary would be employed in a managerial or 
executive capacity. The Petitioner must establish that all eligibility requirements for the immigration 
Matter of M-USA LLC' 
benefit have been satisfied from the time of the filing and continuing through adjudication. 8 C.f.R. 
§ I 03.2(b )(I). By its own admission. the Petitioner had not undergone the necessary expansion as of 
the date the petition was tiled; therefore. the job duties discussed in the Director's decision arc not 
applicable to the time of tiling and need not be further addressed. 
The Petitioner, however. provided a deficient job description that lacked sufficient detail and 
indicated that an undetermined- and possibly primary- portion of the Beneficiary's time would be 
spent performing non-managerial job duties. While no beneficiary is required to allocate I 00% of 
his or her time to managerial- or executive-level tasks. the petitioner must establish that the non­
qualifying tasks the beneficiary would perform are only incidental to the proposed position. 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 or executive capacity. See sections 
10l(a)(44)(A) and (B) of the Act (requiring that one "primarily .. perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology Jnt'/. 19 l&N Dec. 593. 604 (Comm 'r 
1988). 
The applicable job description that lists the job duties the Beneficiary would perform under an 
approved petition includes various operational tasks, such as finding warehouse space to 
accommodate a growing inventory. seeking out and hiring a sales team. and engaging in marketing 
and advertising of the Petitioner's goods to increase future sales. These job duties indicate that the 
Beneficiary possesses discretionary authority to make business decisions on behalf of the Petitioner: 
however. this element alone does not determine that the underlying duties themselves are managerial 
in nature or that they meet the remaining criteria of the definition tor managerial capacity. which 
requires a personnel manager to primarily supervise and control the work of other supervisory. 
professional, or managerial employees or. in the case of a function manager. it requires the 
beneficiary to manage. rather than perform the underlying duties ot: an essential function. ,)'ee 
section 101(a)(44)(A)(i) and (ii) ofthe Act. 
On appeal, the Petitioner references numerous published and unpublished AAO decisions along with 
the facts and 1indings in those cases; it does not. however. explain precisely how these decisions 
apply to the facts and circumstances in the present matter. The Petitioner also argues that the job 
duties that were highlighted in the Director's decision are not daily operational tasks. as the Director 
concluded. However. as noted earlier. only those job duties that the Beneficiary would perform 
immediately under the extended petition are relevant in the matter at hand: job duties that the 
Beneficiary may perform at an undetermined time in the future are not relevant to the issue of the 
Petitioner's eligibility. as they do not establish that the Beneficiary would be employed in a 
managerial capacity at the time offiling. See 8 C.F.R. § I 03.2(b)(l ). Here. the job duties assigned 
to the Beneficiary under an extended petition are those more readily indicative of an employee who 
addresses a company's human resources and carries out its marketing functions. which are 
themselves operational. rather than managerial. tasks. 
Further, the Petitioner's claim that the Beneficiary's primary focus will be ''business development 
and retail growth/expansion:• is ambiguous: without further information as to how the Beneliciary 
4 
lvfatter of M-US'A LLC 
plans to execute her role. it appears that retail gro~th and expansion are responsibilities that 
inherently involve a sales component. thereby indicating that the Beneficiary would engage in the 
operational tasks of targeting potential clients to increase product sales. The Petitioner does not 
address the issue of who, other than the Beneficiary, would be able to market and sell the 
Petitioner's products until the Beneficiary is able to secure a sales team to take over that function. 
While the record indicates that the Beneficiary would likely have discretionary authority over the 
Petitioner's financial and business concerns. her job description indicates that she would allocate her 
time primarily to the organization· s operational functions: thus we cannot conclude that the 
Beneficiary would primarily perform managerial tasks as a regular part of her daily routine. 
2. Staffing 
Beyond the required description of the job duties. USCIS reviews the totality of the record when 
examining a beneficiary's claimed managerial 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. 
As indicated earlier. 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 he acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are 
professional.'" Section IOI(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other 
employees. the beneficiary must also have the authority to hire and fire those employees. or 
recommend those actions. and take other personnel actions. 8 C.F.R. § 214.2(1)( I )(ii)(B)(J). 
In- the present matter. the Petitioner claimed two employees at the time of tiling the petition and 
submitted an organizational chart depicting the two current employees and three projected hires, 
including a sales manager, an account manager. and a customer service employee. As these three 
positions had not been tilled at the time of filing, it is reasonable to assume that the duties that would 
normally be assigned to a sales manager. an account manager. and a customer service employee 
would have to be distributed between the Beneficiary and the warehouse manager. who was the 
Petitioner's only other employee when the petition was tiled. 
In the RFE, the Director observed that the record lacked information about the employees the 
Beneficiary would manage. The Petitioner responded, stating that the Beneficiary currently oversees 
a warehouse manager and a commission-based ··representative/broker to secure the right to sell and 
merchandise its products.'' In a separate letter. the Petitioner further stated that the warehouse 
manager would take over many of the operational duties that the Beneficiary had been previously 
performing: it did not. however. specifically state which duties the warehouse manager would 
Matter <!fM-USA LLC 
perform, explain why the ''representative/broker'' was not included in the organizational chart, or 
specify his role going forward. once the "representative/broker" gains the right to sell its products. 
Although the Petitioner argues on appeal that the Director "seemingly ignores" the independent 
contractor as one of the Beneficiary's subordinates. it provides no supporting evidence, such as wage 
documents, to show that it actually paid the contractor for services and that such services were being 
provided at the time of filing. The Petitioner must support its assertions with relevant, probative. 
and credible evidence. ,(.,'ee 1Hatter of Chawathe. 25 l&N Dec. 369, 376 (AAO 201 0). Further, the 
record does not contain information about the educational requirements or educational credentials of 
the Beneficiary" s claimed subordinates. nor did the Petitioner discuss either position· s assigned job 
duties. 2 Thus, even if the Beneficiary was overseeing a "representative/broker'' and a warehouse 
manager at the time the petition was filed. the record does not established that either position is 
supervisory, professional, or managerial pursuant to the statutory definition. See section 
IOI(a)(44)(A)(ii) of the Act. 
Alternatively, 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 10l(a)(44)(A)(ii) ofthe Act. ]fa 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 
"(I) the function is a clearly defined activity: (2) the function is 'essentiaL' i.e .. core to the 
organization: (3) the beneficiary will primarily mana:.;e. as opposed to perfimn, 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 ofG-Inc., Adopted Decision 2017-05 (AAO Nov. 8. 2017). 
In this matter, the Petitioner claims that the Beneficiary will be primarily responsible for business 
development and retail growih. However. the Petitioner has not provided sufficient evidence to 
demonstrate that the Beneficiary would manage, as opposed to perform, the underlying marketing 
and sales tasks associated with these functions. See Chmmthe, 25 l&N Dec. at 376. As discussed 
above, the Petitioner has not established that it had retained the services of a "representative/broker" 
at the time of filing, thereby leaving the Beneficiary with a single subordinate employee. We find 
that this staffing composition is not sufficient to relieve the Beneficiary from having to allocate her 
time primarily to daily operational tasks. such as marketing and selling the Petitioner"s products and 
overseeing a warehouse manager whose managerial position title is not sufficient to establish that 
she is a supervisory, professional, or managerial employee. 
' In evaluating whether a beneficiary manages professional employees. we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum tor entry into the field of endeavor. C{ 8 C.F.R. § 204.5(k)(2) 
(defining "'profession" to mean "'any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation''). Section 10l(a)(32) of the Act, states that "'[t]he term profession 
shall include but not be limited to architects. engineers. lawyers. physicians. surgeons. and teachers in elementary or 
secondary schools. colleges, academies, or seminaries." 
Maller ofM-USA LLC 
The Petitioner correctly observes that 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 determining whether the 
Beneficiary is or would be employed in a managerial or executive capacity. See section 
l 0 l (a)( 44 )(C) of the Act. However, it is appropriate for USC IS to consider the size of the 
petitioning company in conjunction with other relevant factors, such as the absence of employees 
who would perform the non-managerial or non-executive operations of the company or a company 
that does not conduct business in a regular and continuous manner. Family Inc. v. USC!S, 469 f.3d 
1313 (9th Cir. 2006): Systronics Corp. v. INS. !53 F. Supp. 2d 7. 15 (D. D.C. 200 I). As previously 
discussed. while the Petitioner employs a warehouse manager. who likely relieves the Beneficiary of 
some operational tasks. the Petitioner has not provided the warehouse manager's job description to 
determine which tasks are assigned to that position, nor has it established that this single subordinate 
employee is sufficient to relieve the Beneficiary from having to allocate her time primarily to selling 
and marketing the Petitioner's products and carrying out its customer service and account 
management tasks. As previously noted. only an employee who '·primarily" carries out tasks of a 
managerial nature can be deemed as someone who is primarily employed in a managerial capacity. 
See. e.g.. sections IOI(a)(44)(A) of the Act. Here. the Petitioner has not provided relevant, 
probative. and credible evidence to support the claims being made and thus it has not established that 
it is adequately staffed such that it can support the Beneficiary in a managerial position. 
B. Executive Capacity 
On appeal, the Petitioner also claims that the Beneficiary's proposed position fits the statutory 
criteria for executive capacity. The Petitioner argues that a determination as to whether the 
Beneficiary's employment would be in an executive capacity cannot rest solely on the joh 
description. The Petitioner does not. however, offer evidence to demonstrate the executive nature of 
the proposed position: instead. it contends that the Beneficiary's duties establish that she would be 
employed in an executive capacity and offers paraphrased portions of the statutory definition that 
contains references to a beneficiary's policy-making role and discretionary authority. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy. including major components or functions of the 
organization. and that person's authority to direct the organization. Section IOI(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. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial 
employee. A beneficiary must also exercise '·wide latitude in discretionary decision making'' and 
receive only "general supervision or direction from higher level executives. the board of directors. or 
stockholders of the organization." !d. 
7 
Maller of M- USA LLC 
Our prior discussion indicates that neither the Beneficiary's job duties nor the Petitioner's 
organizational complexity establishes that her role within the U.S. organization would focus 
primarily on directing the management of the organization and establishing the organization's 
policies. Therefore. we disagree with the Petitioner and find that it has not provided sufficient 
evidence to support the claim that the Beneficiary would be employed in an executive capacity under 
an extended petition. 
Ill. DOING BUSINESS PRIOR TO FILING 
In addition, while not previously addressed in the Director's decision. we find that the Petitioner has 
not provided sufficient evidence to show that it was doing business for one year prior to filing the 
instant extension of the new office petition. 
The regulation at 8 C.F.R. ~ 214.2(1)(3)(v)(C) only allows a ''new office" operation one year within 
the date of approval of the petition to support an executive or managerial position. There is no 
provision in USC IS regulations that allows for an extension of this one-year period. If a business 
does not have the necessary staffing after one year to relieve a beneficiary from primarily 
performing operational and administrative tasks, a petitioner is ineligible for an extension. As 
discussed above. the Petitioner in this matter has not reached the point that it can employ the 
Beneficiary in a qualifying managerial or executive position. 
Furthermore, at the time a petitioner seeks an extension of the new office petition. the regulation at 
8 C.F.R. ~ 214.2(1)(14)(ii)(B) requires it to demonstrate that it has been doing business for the 
previous year. The term ''doing business" is defined in the regulations as "the regular. systematic. 
and continuous provision of goods and/or services by a qualifying organization and does not include 
the mere presence of an agent or otlice of the qualifying organization in the United States and 
abroad.'' 8 C.F.R. § 214.2(1)(1 )(ii)(H). The instant petition was tiled in October 2016 and the record 
shows that the Petitioner is a sales-based operation. However, the earliest sales transaction in the 
record consists of a sales invoice from June 2016. The Petitioner has not provided sutlicient 
evidence to show that it has been selling its products for one year prior to filing the instant petition. 
IV. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that the Beneficiary 
will be employed in the United States in a managerial or executive capacity under an extended 
petition or that the Petitioner has been doing business for the requisite duration prior to tiling the 
instant petition. The appeal will be dismissed for these reasons. 
ORDER: The appeal is dismissed. 
Cite as Matter ofM-USA LLC. ID# 939402 (AAO Feb. 27. 2018)