dismissed L-1A Case: Cultural Exchange Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF U.S.J-R-X-C-E- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 30.2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, described as a provider of "culture exchange services," seeks to temporarily employ 
the Beneficiary as its general manager under the L-1 A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. 
§ 110l(a)(l5)(L). The L-1A classification allows a corporation or other legal entity (including its 
affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to work 
temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred by requiring the Beneficiary's duties to be entirely. rather than 
primarily, those of a manager or executive. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 101(a)(l5)(L) of the Act. In addition. the beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. !d. 
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 the 
United States in a managerial or executive capacity. 
Matter of U.S.J-R-X-C-E LLC 
A managerial capacity is an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization, 
and exercises discretion over the day-to-day operations of the activity or function for which the 
employee has authority. A personnel manager supervises and controls the work of other 
supervisory, professional, or managerial employees; the duties of a first-line supervisor are not 
considered managerial unless the employees supervised are professional. A personnel manager must 
also have the authority to execute or recommend personnel actions such as hiring, firing, and 
promotions. A function manager need not directly supervise other employees, but must manage an 
essential function within the organization, or a department or subdivision of the organization, and 
function at a senior level within the organizational hierarchy or with respect to the function 
managed. See section 101(a)(44)(A) ofthe Act. 
An executive capacity is an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide 
latitude in discretionary decision-making; and receives only general supervision or direction from 
higher-level executives, the board of directors, or stockholders of the organization. Section 
101(a)(44)(B) ofthe Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 1 01 (a)( 44 )(C) of the Act. 
A. Duties 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the Beneficiary's 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). 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World. Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
The Petitioner stated that it exists "to provide domestic expertise for clients seeking cultural tours to 
the United States." The Petitioner listed the Beneficiary's proposed "'core manager duties and 
responsibilities" and the time to be devoted to each: 
2 
Matter of U.S.J-R-X-C-E LLC 
• In charg[ e] of recruiting of new employees according to the growth of the 
company's business; evaluating employee's performance. developing new 
positions according to the expansion of the business, establishing salaries and 
bonuses. ( 5% of time) 
• Responsible for staff training, task allocation, and performance evaluation (1 0% 
of time) 
• Reviewing the company's costs and modify the operating procedures and policies 
to enhance the operational efficiency, oversee company's budgets and resources 
(15% oftime) 
• Decide the important issues related to personnel, financial, legal and others for the 
U.S. company, and sign documents on behalf of the company (20% oftime) 
• Leading the company and its employees to develop new profit business. including 
development of new travel line and establishment of new culture exchange 
partners in the U.S. (20% oftime) 
• Establishing company short-term and long-term plans according to business and 
market changes. Report to board of director's approval of the parent company in 
China (15% oftime) 
• Actively communicate with Chinese parent company to better service company's 
customers in China. Provide strong support for the development of both parent 
company in China and the subsidiary company in USA. (15% of time) 
• Holding company's annual conference at end of year. Setting up next year's 
company objective according to this year's accomplishments, personnel and 
financial situation as well as business development level. (1% of time) 
The Director denied the petition, stating that the Petitioner had not provided enough information 
about the Beneficiary's day-to-day tasks. The Director also found that recruiting and training staff 
are not the duties of a manager, but rather of a lower-level human resources employee. 
On appeal, the Petitioner states that the Beneficiary will devote "the majority of his time" to 
"executive and managerial duties, such as setting out the company's goals and policies:· but he also 
"will have to initially perform the duties of 'Recruiting' and 'Training"' because the ''company is 
still in the process of developing its operations.,. 
USCIS regulations contain special provisions for a "new office" that has been doing business in the 
United States for less than one year. See 8 C.F.R. §§ 214.2(l)(l)(ii)(F) and 214.2(1)(3)(v). But in 
this instance, the Petitioner has not claimed to be a new office or submitted the additional evidence 
that a new office petition requires. Therefore, even if the Petitioner is still in a start-up phase or in 
the preliminary stages of development, the Petitioner must still establish that it could support a 
managerial or executive position at the time of filing. See 8 C .F .R. § l 03 .2(b )( 1 ). 
As the Petitioner notes on appeal, the Beneficiary need only devote most of his time. not all of it. to 
qualifying managerial or executive tasks. Training and recruitment take up no more than 15% of the 
3 
Matter of US.J-R-X-C-E LLC 
Beneficiary's time, and therefore those duties do not, by themselves, warrant denial of the petition. 
The Director, however, had cited additional issues. 
The Director found that the Petitioner had not provided enough information about the Beneficiary's 
daily work. We agree that the job description here lacks detail. The Petitioner included separate 
items for "[e]stablishing company short-term and long-term plans" and '"[s]etting up next year's 
company objective," without explaining the difference between them. Only one of the items in the 
job description refers to the services the company provides. Finally, many of the items in the job 
description are general assertions such as "[ d]ecide the important issues'' and "[l]eading the 
company." 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), aff'd, 905 F.2d 41 (2d. Cir. 1990). Reciting the 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 ofthe employment. ld. 
The submitted job description does not contain enough information to show that the Beneficiary will 
primarily perform managerial or executive functions rather than more basic operational and 
administrative tasks. Furthermore, there are significant questions about who in the company will 
perform the travel and tourism services it claims to provide. We will discuss these questions in the 
next section, below. 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining 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 statutory definition of "managerial capacity" allows for both "personnel managers'' and 
"function managers." See sections 101(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." Section 101(a)(44)(A) of the Act. If a petitioner claims 
that a beneficiary directly supervises other employees, those subordinate employees must be 
supervisory, professional, or managerial, and the beneficiary must have the authority to hire and tire 
those employees, or recommend those actions, and take other personnel actions. Sections 
10l(a)(44)(A)(ii)-(iii) ofthe Act. 
4 
Matter of US.J-R-X-C-E LLC 
At the time of filing, the Petitioner indicated that the Beneficiary had five subordinates, with the 
following capsule job descriptions: 
Customer Specialist 
Finance Manager 
Marketing Director 
Sales Manager 
Sales Assistant 
Website design, print pages design 
Balance the income and cost, setup and control the budget 
[F]ully in charge of Marketing department 
Promote tour line to the Chinese tourist 
Assisting sales in marketing and following up with customs. 
The first three individuals report directly to the Beneficiary. The last two are subordinate to the 
marketing director. 
To determine 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 101 ( 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." 
In the denial notice, the Director found that the Petitioner had not shown the Beneficiary's 
subordinates to be professionals. The Petitioner has indicated that the sales manager, sales assistant 
and customer specialist each hold bachelor's degrees. That, however, is not the test of whether a 
given occupation is professional. The Petitioner has not shown that those positions require 
bachelor's degrees. The Petitioner did not dispute the Director's finding on appeal. 
The marketing director has authority over two lower-level employees, but both of those employees. 
including the one called the "Sales Manager," have direct promotional and sales duties. As such, the 
marketing director is a first-line supervisor of sales personnel rather than a manager. The 
Beneficiary's authority over one identified supervisor is not enough to show that the Beneficiary is 
primarily a manager. The Petitioner has not shown that the Beneficiary devotes most of his time to 
overseeing the company's sales and marketing functions (without actually performing those 
functions or directly supervising those who do). The information that the Petitioner has provided 
does not establish that the Beneficiary qualifies as a personnel manager. 
The Petitioner has not established, in the alternative, that the Beneficiary qualifies as a function 
manager. 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. The term 
"essential function" is not defined by statute or regulation. If a petitioner claims that a beneficiary 
will manage an essential function, a petitioner must clearly describe the duties to be performed in 
managing the essential function, i.e., identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of a beneficiary's daily duties dedicated to 
5 
Matter of US.J-R-X-C-E LLC 
managing the essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, a petitioner's 
description of a beneficiary's daily duties must demonstrate that the beneficiary will manage the 
function rather than perform the duties related to the function. In this instance, the Petitioner has not 
identified any specific essential function, relying instead on the general assertion that the Beneficiary 
will be the highest-ranking official in the company, with authority over the entire business. Without 
more information, this general claim cannot establish that the Petitioner will employ the Beneficiary 
as a function manager. 
On appeal, the Petitioner does not dispute the Director's finding that the subordinate positions do not 
appear to be professional. Instead, the Petitioner maintains that the Beneficiary is an executive, 
"overseeing department Managers without being involved in the department's daily activities." 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 101(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 a beneficiary 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 an owner or sole managerial 
employee. 
The minimal job descriptions provided, however, do not show that any of the Beneficiary's 
subordinates are managers. Web design and bookkeeping are operational and administrative 
functions, and therefore, if their job descriptions are accurate, the Beneficiary's authority over the 
customer specialist and finance manager is that of a first-line supervisor. The submitted job 
descriptions are often vague, and many specified duties are not managerial. The Petitioner has not 
shown that the Beneficiary's authority over the subordinate positions described amounts to a 
managerial capacity. As discussed below, the Petitioner has not shown that the Beneficiary's 
subordinates relieve the Beneficiary from significant involvement in the company's day to day 
operations. 
Beyond the lack of detail about the Beneficiary's own duties, the Petitioner has not shown who 
performs basic company functions. All of the subordinates' identified duties have to do with sales 
and promotion of the company's services, rather than actually providing those services. 
Under the terms of a contract the Petitioner executed with a Chinese travel agency, the Petitioner 
agreed "to undertake reception of [the travel agency's] organized tour groups'' and to "provide 
service to the tourist group" including arranging for "lodging, meal[s], transportation and etc.'' [sic]. 
Itineraries in the record referred to ship cruises, bus tours, and airplane flights, with a "Chinese 
speaking driver and tour guide." (The itinerary specified that ''[i]n Hawaii, the driver shall be the 
tour guide," indicating that in the continental United States, there would be a driver and a separate 
tour guide.) The Petitioner also reported owning a boat. The Petitioner has not explained who in the 
.
Matter of US.J-R-X-C-E LLC 
company would act as a driver or tour guide, operate and maintain the boat, and provide services 
such as booking flights, reserving hotel accommodations, transporting customers to meals and 
lodging, and handling customer service issues. None of the submitted job descriptions included 
those tasks, the Petitioner's organizational chart does not include a driver or tour guide, and the 
Petitioner has not documented its use of outside contractors. On its 2016 tax return, the Petitioner 
claimed no "cost of labor" expenses or other expenses that reliably trace back to paying others to 
provide the tourist services that the Petitioner itself was ostensibly under contract to provide. 
The Petitioner has not established that it will employ the Beneficiary in a managerial or executive 
capacity in the United States. 
III. QUALIFYING RELATIONSHIP 
Beyond the Director's decision, the record raises two additional concerns, both arising from the 
ownership of the petitioning company. The first issue concerns the necessary qualifying relationship 
between the Petitioner and the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, a petitioner must show 
that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. 
one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See 
generally section 101(a)(15)(L) ofthe Act; 8 C.F.R. § 214.2(1). 
A subsidiary is a legal entity owned, in whole or in part, by a parent which also controls the entity. 
See 8 C.F.R. § 214.2(l)(l)(ii)(K). 
The Petitioner has asserted that it is the subsidiary of a parent company in China. The record, 
however, does not support that claim. Instead, the record shows that two individuals own the 
Chinese company that has employed the Beneficiary, and those same two individuals own most of 
the petitioning U.S. entity: 
Owner 
The Beneficiary 
Shares of foreign entity 
50% 
50% 
Shares of U.S. entity 
45% 
45% 
10% 
The foreign and U.S. companies are separate and distinct legal entities from their owners. The 
foreign company, itself, does not hold any shares in the petitioning U.S. company, and therefore it is 
not the Petitioner's parent company as the Petitioner asserts. 
Likewise, the Petitioner has not established 
that it is an affiliate of the foreign company. An affiliate 
is one of two subsidiaries, both of which are owned and controlled by the same parent or individuaL 
or one of two legal entities owned and controlled by the same group of individuals, each individual 
owning and controlling approximately the same share or proportion of each entity. See 8 C.F.R. 
Matter of US.J-R-X-C-E LLC 
§ 214.2(l)(l)(ii)(L). Here, the Petitioner has not shown that a single parent owns and controls both 
entities, and the two companies do not have the same ownership. The U.S. company has a third 
owner who does not own part of the foreign company, and therefore the same group of individuals 
does not own and control both companies. 
The Petitioner has not established a qualifying relationship between itself and the Beneficiary's 
foreign employer. 
IV. CONCLUSION 
The Petitioner did not establish that it will employ the Beneficiary primarily in a managerial or 
executive capacity. Also, the Petitioner has not shown a qualifying relationship with the 
Beneficiary's foreign employer. 
ORDER: The appeal is dismissed. 
Cite as Matter ofUS..J-R-X-C-E- LLC, ID# 673389 (AAO Oct. 30, 2017)