dismissed L-1A Case: Currency Exchange

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-US, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 3 L 2018 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a sales office affiliated with a currency exchange service in Brazil, seeks to 
temporarily employ the Beneficiary as commercial director of its new office 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. § 1101(a)(15)(L). The L-JA classification allows a corporation 
or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the 
United States to work temporarily in a managerial or executive capacity. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish, as required, that the new office would support a managerial or executive position within 
one year of approval of the petition. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred by 
relying on an arbitrary definition of the word "professional." 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1A 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 lOl(a)(IS)(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. 
A petitioner seeking to employ a beneficiary as a manager or executive of a new office must 
establish that the new office will support an executive or managerial position within one year of 
approval ofthe petition. 8 C.F.R. § 214.2(1)(3)(v)(C). 
Matter of A-US, LLC 
II. NEW OFFICE 
The Director found that the Petitioner did not establish that the new office would support a 
managerial position within one year of approval of the petition. The Petitioner does not claim that it 
seeks to employ the Beneficiary in an executive capacity. Therefore, we restrict our analysis to 
whether the Petitioner will employ the Beneficiary in a managerial capacity. 
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. Section 101(a)(44)(A) ofthe Act. 
When a new business is first established and commences operations, the regulations recognize that a 
designated manager responsible for setting up operations will be engaged in a variety of low-level 
activities not normally performed by employees at the executive or managerial level and that often 
the full range of managerial responsibility cannot be performed in that first year. The "new office'' 
regulations allow a newly established petitioner one year to develop to a point that it can support the 
employment of a beneficiary in a primarily managerial position. 
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new 
office," it must show that it is prepared to commence doing business immediately upon approval so 
that it will support a manager within the one-year timeframe. This evidence should demonstrate a 
realistic expectation that the enterprise will succeed and rapidly expand as it moves away from the 
developmental stage to full operations, where there would be an actual need for a manager or 
executive who will primarily perform qualifying duties. See generally 8 C.P.R.§ 214.2(1)(3)(v). 
A. Duties 
When examining the managerial capacity of the Beneficiary, we will review the Petitioner's 
description of the Beneficiary's intended 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 definition of managerial capacity has two parts. First, the Petitioner must show that the 
Beneficiary will perfonn 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 
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Matter of A-US, LLC 
Beneficiary will be primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USCJS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petitioner stated the following: 
[The Petitioner] is in the beginning stages of its operations . . . . [It] will connect 
U.S.-based clients with the currency exchange and regulatory compliance services 
provided by [its foreign subsidiary]. Additionally, [the Petitioner] will serve 
Brazilian clients who have businesses, properties, and investments in the U.S .... 
[The Beneficiary] will be responsible for overseeing the sales team and creating sales 
strategies that the sales teams will use in order to acquire clients and increase 
transaction rates. As the U.S. office will largely be a sales office that will connect 
clients offered to the services provided by the staff in Brazil, [the Beneficiary] will 
also manage the relationships between key clients and the larger [company] team 
abroad . . . . Finally, when ready. [the Beneficiary] will assess expansion 
opportunities .... 
. . . [A]s Commercial Director, [the Beneficiary] will oversee the administrative and 
sales departments, with most of his focus on overseeing the sales team strategies and 
goals. During the first months of operations, [the Beneficiary] will explore 
networking opportunities, advertise the [company's] brand and services. and assess 
the best way for the forthcoming salespeople to be successful in the U.S. market. 
Once [the Beneficiary's] initial strategic plan is ready for implementation, he will 
begin hiring the sales staff that will carry out his vision. 
The Petitioner's business plan included a description of the Beneficiary's intended duties and the 
approximate percentage of time the Beneficiary would devote to each area of responsibility: 
Role Description 
Creating Business • Consulting with the [foreign company's] sales teams to assess 
Development and local market trends and customer needs 
Sales Strategies for • Assessing strengths and weaknesses of the department and 
[the Petitioner's] working with individuals to improve client interactions and 
Office ( 60%) increase the number of monthly transactions 
• Overseeing the sales staff and evaluating the Company's needs 
for staff expansion 
• Screening and selecting new employees to serve the office 
Managing • Ensuring high quality of service for key clients from [the 
Relationships company's] registration department, trade desk, and technical 
Matter of A-US, LLC 
Between Clients departments through continual communication about client 
and [the foreign needs and client satisfaction 
company] (20%) • Maintaining open communication between [the Petitioner's] 
new ... clients and the team in Brazil to ensure high quality of 
service 
Researching and • Researching and evaluating the needs of new markets 
Planning for the • Recommending expanswn opportunities and tactics to the 
Establishment of [foreign company's] executive team 
new Branches Ill 
the US (20%) 
The above job description indicates that the Beneficiary would spend most of his time overseeing 
sales staff in Brazil and the United States. The chief executive officer (CEO) of the foreign affiliate 
stated that the petitioning U.S. entity "is to serve as a qualified sales office" for the foreign affiliate. 
The CEO added that the organization's key operational work regarding currency exchange would 
take place in Brazil, and therefore the Beneficiary would not be performing that work in the United 
States. 
The Director concluded: "it seems even at the conclusion of one year the beneficiary will be heavily 
involved in the sales, and general operations of [the Petitioner's] business." On appeal, the 
Petitioner asserts that the Director did not explain the reasoning behind that conclusion. The 
Petitioner also contends that the Director's use of the phrase "it seems" shows that decision was 
"based [on] the Adjudicating Officer's belief, and not in a discerning analysis of the evidence 
presented." 
The Petitioner asserts that the company knows its own business better than U.S. Citizenship and 
Immigration Services (USCIS) does, and therefore the Director should have given deference to the 
company's "comprehensive business plan." The Petitioner also contends that the company would 
not have transferred the Beneficiary to the United States "to be a mere sales person." 
The Director is required to explain the grounds for denial. 8 C.F.R. § 1 03.3(a)(l )(i). In this 
instance, the Director has met this requirement, notwithstanding the Petitioner's claim to the 
contrary. Much of the denial concerned issues with the company's staffing, which we will discuss 
below. Apart from staffing, the Director discussed the three-part description of the Beneficiary's 
intended duties. The Director stated that "the first duty appears to be related to the beneficiary 
directly working with and supervising sales staff," and that the second listed duty relates to "non­
managerial sales and customer services not typically associated with a qualifying manager." The 
Director's use of phrases such as "'it seems" or "it appears'' does not inherently discredit the decision 
or show that it is solely the product of uninformed opinion. 
The burden of proof is on the Petitioner to establish eligibility, rather than on the Director to rebut 
any presumption of eligibility. The Petitioner has responded to the Director's findings with 
rhetorical questions and the summary assertion that the foreign company would not squander the 
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Matter of A-US. LLC 
Beneficiary's talents by putting him in a non-managerial position. These responses do not address or 
overcome the grounds for denial. Likewise, the assertion that the Petitioner knows its own business 
better than the Director does not relieve the Petitioner of its burden of proof. 
The Petitioner has not established that the Beneficiary will primarily perform managerial duties 
within one year of the approval of the petition. 
B. U.S. 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; 8 C.F.R. 
§ 214.2(1)(1 )(ii)(B)( 4). 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 fire those employees, or recommend those actions, and take other 
personnel actions. Sections IOI(a)(44)(A)(ii)-(iii) ofthe Act; 8 C.F.R. §§ 214.2(1)(1)(ii)(B)(2)-(3). 
In this case, the Petitioner has specified that the Beneficiary's managerial role would derive from his 
supervision of professional employees. 
The Petitioner explained its planned first-year staffing schedule: 
By the third month of operations, [the Petitioner] will hire an administrative assistant 
to handle general administrative duties, calendar management. and recordkeeping. 
By the eighth month of operations, the company will hire its first salesperson to begin 
setting meetings with prospective clients, pitching [the foreign affiliate's] services. 
and closing contracts. By the end of the first year, the company will also hire an 
administrative director who will be responsible for financial management. human 
resources, and other administrative support. 
The Petitioner also intended to hire a sales manager, but not until the company's fourth year of 
operations. Until that time, the Beneficiary would directly supervise the sales staff. The Beneficiary 
and the administrative director would have joint authority over the administrative assistant. 
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Matter of A-US. LLC 
The Petitioner asserted that its sales positions are professional because, unlike typical sales work, 
"the sales process ofthe [Petitioner's] services requires complex knowledge of financial compliance , 
anti-money laundering regulation, exchange rate fluctuation and other financial matters.'' 
The Petitioner hired two sales account representatives while the petition was pending, and asserted 
that these two employees are professionals with "college degrees." The threshold tor a profession is 
generally a bachelor's degree, which is not necessarily synonymous with a "college degree'' as a 
"college" degree could include an associate 's degree. 
The Petitioner submitted the resumes for the two new hires. One, with initials B.C., provided a job 
description that appears to have been copied and pasted from one or more sources. The listed 
elements of the job description are in three different fonts. The resume stated her title as "Client 
Relationship Executive" and "Senior Corporate Account Manager ," reporting to the "Client 
Relationship Manager. " These titles do not exist at the petitioning company
, and the job description 
on the resume bears little resemblance to any of the job descriptions in the Petitioner's business plan. 
B.C. did not claim to hold a bachelor's degree. Instead, she claimed to have earned an associate's 
degree, followed by "General Studies Concentrating in Finance.'' The Petitioner did not submit a 
transcript , diploma , or other 
documentation that would shed light on B.C.'s education. 
The Petitioner's other new hire, with initials G.K.B., listed only three very general responsibilities at 
the petitioning company: ' 
Evaluates data and register[ s] new clients 
Establishes and maintain[s] relationships with individual or business customers or 
provide[s) assistance with problems these customers may encounter. 
Help[ s J increas[ e J revenues through customer service. 
G.K.B. stated that he earned an associate's degree in business administration in 2014, and was 
currently studying for a bachelor ' s degree in international business , with an expected graduation date 
of December 2017, eight months after the Petitioner hired him. 
G.K.B. indicated that, in addition to his work with the Petitioner, he was also general manager at 
(He listed his employment dates as " 1 0/2015 to Present.") G.K.B. referred to 
as a "store" but otherwise provided little information about the nature of the 
business . 
Although the Petitioner had initially stated that its first hire would be an administrative assistant, 
payroll documents show that the Petitioner had only hired the sales account representatives. The 
Petitioner did not explain who performed the tasks that would have been delegated to the 
administrative assistant. 
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Matter of A-U.S. LLC 
In the denial notice, the Director found that the Beneficiary's intended first-year subordinates would 
not be managers or supervisors, and that the Petitioner had not substantiated its assertion that they 
would be professionals. The Director noted that G.K.B. had not yet completed his bachelor's degree 
at the time of his hiring, which demonstrates on its face that a bachelor's degree is not a prerequisite 
for the job. The Director also noted that the Petitioner had not shown that B.C. holds a bachelor's 
degree. 
On appeal, the Petitioner states that the statute and regulations do not require a bachelor's degree as 
the minimum threshold for a profession, and that, in the absence of a specific definition, we ''must 
investigate other portions of the law where such term is relevant." The Petitioner quotes 8 C.F.R. 
§ 214.2(f)(6)(ii): "a college or university is an institution of higher learning which awards 
recognized associate, bachelor's, master's, doctorate. or professional degrees." The Petitioner 
contends: "the regulation clearly implies that [a) professional degree (i) exists by itself, (ii) it is not 
linked to [a] bachelor's degree, (iii) it does not require a bachelor's degree and (iv) it is not the same 
as [a] bachelor's degree." 
The Petitioner's argument does not withstand scrutiny. Starting with the above premises. the 
Petitioner concludes that an occupation that requires a "college degree·· is a profession. The 
Petitioner's reliance on the existence of "professional degrees," however, implies that a profession 
would require not just any "college degree," but specifically a "professional degree," a term which is 
more, not less, restrictive than the Director's reliance on a bachelor's degree. The U.S. Department 
of Education defines a "professional degree" as: 
A degree that signifies both completion of the academic requirements for beginning 
practice in a given profession and a level of professional skill beyond that normally 
required for a bachelor's degree. Professional licensure is also generally required. 
Some examples are pharmacy (Pharm.D.), dentistry (D.D.S. or D.M.D.). and law 
(L.L.M. or J.D.). 
Federal Student Aid Handbook 2017-2018, p. 1-86, https://ifap.ed.gov/fsahandbook/attachments/ 
1718FSAHbkActivelndex.pdf. This definition explicitly refers to professional degrees as post­
baccalaureate. The Petitioner has not identified any specific professional degree required for its 
sales positions, or that its employees hold such a degree. 
Because 8 C.F.R. § 214.2(f)(6)(ii) "does not provide a clear definition of 'professional,"' the 
Petitioner asserts that we must tum to outside sources "[a]bsent such definition in the Jaw and 
regulations." The Petitioner cites the definition of"profession" from Black's Law Dictionary 1246 
(8th ed. 2004 ), as "[a] vocation requiring advanced education and training." The cited examples are 
"theology, Jaw and medicine." The definition of "professional" refers to "a high level of training 
and proficiency." !d. The Petitioner has not established that its sales positions require advanced 
education and training comparable to those examples . 
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Matter of A-US, LLC 
The Petitioner is correct that we must look beyond the regulations specific to L-1 petitions for a 
definition of "profession." Immigration regulations, however, do provide a definition of the term. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines a "profession" as "one of the occupations listed in 
section 10l(a)(32) of the Act, as well as any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry into the occupation." As the 
Petitioner acknowledges on appeal, section 101 (a)(32) of the Act lists several examples of 
professional occupations: "architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academies, or seminaries." All of the listed professions 
require at least a bachelor's degree and, in many cases, licensure or certification. 
The Petitioner has not established that its sales personnel qualify as professionals. 
The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of managerial, supervisory, or professional subordinates but instead is primarily responsible for 
managing an "essential function" within the organization. See section 10l(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 ofG- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). In this case, the Petitioner has 
not claimed that the Beneficiary will serve as a function manager, or articulated a specific function 
that the Beneficiary will manage. Instead, as detailed above, the Petitioner has relied on the 
assertion that the Beneficiary will supervise professional subordinates within one year of the 
approval of the petition. 
C. Staffing Abroad 
The CEO of the Brazilian affiliate stated: 
Once a client is secured, it is [the Beneficiary's] responsibility to coordinate the professionals in 
Brazil to serve such client and implement the service sold. In that connection, [the Beneficiary] 
must initiate contact and supervision with the following departments in Brazil: 
a. The compliance department for background check and screening of the client; 
b. The commercial department to input client's information into our systems, including its 
profile, personal information, potential for new transactions and other relevant data; 
c. The trade desk for a quick and efficient currency trade; 
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Matter of A-US, LLC 
d. The treasury department to manage allocation of margms and other regulatory 
requirements; and 
e. Finally, the financial department for collection of our fees. 
The Petitioner indicated that the Beneficiary worked with professional subordinates in Brazil, but did 
not submit evidence to establish that the employees in Brazil qualify as professionals, or that they 
would report to the Beneficiary instead of to supervisors or managers at their location in Brazil. The 
Beneficiary's interaction with staff in Brazil does not necessarily constitute supervision or 
management. The office in Brazil opened before the U.S. affiliate did, and therefore a management 
or supervisory structure would have been in place there before the U.S. office began doing business. 
The Petitioner has not shown that the establishment of the U.S. office caused a relocation or 
restructuring of the existing organizational structure in Brazil. 
The Petitioner submitted copies of email exchanges between the Beneficiary and various individuals, 
some of whom work with the affiliate in Brazil. These communications demonstrate the 
Beneficiary's continued contact with the foreign affiliate, but do not show that the Beneficiary 
exercises managerial or supervisory authority over employees in Brazil. 
In the denial notice, the Director acknowledged the Petitioner's claim that the Beneficiary would 
continue to supervise workers in Brazil. But the Director found that the Petitioner had not submitted 
enough information about this arrangement or the duties and qualifications of the workers in Brazil. 
On appeal, the Petitioner does not address or support its earlier assertions regarding the 
Beneficiary's continued supervision of employees based in Brazil. Therefore, the Petitioner has 
abandoned this issue. See Sepulveda v. US Att'y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005); 
see also Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 
2011 ). Apart from the absence of a rebuttal from the Petitioner, we agree with the Director's finding 
that the Petitioner cannot meet its burden of proof simply by asserting that some of the foreign 
company's employees are professionals who will answer to the Beneficiary's authority. 
lii. CONCLUSION 
The Petitioner did not establish that its new office will employ the Beneficiary in a primarily 
managerial capacity within one year of approval of the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-US, LLC, ID# 893024 (AAO Jan. 31, 2018) 
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