dismissed L-1A Case: Cyber Security

MATTER OF S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 20, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a cyber security company, seeks to temporarily employ the Beneficiary as its 
engineering manager under the L-IA 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-IA 
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 Petitioner did 
not establish, as required, that: (1) the Beneficiary was employed abroad in a managerial or 
executive capacity; (2) the Beneficiary is qualified to perform the intended services for the U.S. 
entity; and (3) the Beneficiary would be employed in a managerial or executive capacity under an 
approved petition. 
On appeal, the Petitioner contends that the Director should have approved the petition and points to 
previously submitted evidence that it claims adequately addressed all three of the above adverse 
findings. 
Upon de nova review, we find that the Petitioner has not overcome the Director's findings regarding 
the Beneficiary's employment capacity in his proposed U.S. position. Therefore, we will dismiss the 
appeal. We will, however, withdraw the two remaining two issues as the Petitioner provided 
sufficient evidence to establish that the Beneficiary was employed abroad in a managerial capacity 
and that he is qualified to assume the proposed position in the United States. 
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)(15)(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. Id. The 
Matter ofS-, Inc. 
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 Petitioner claims that the Beneficiary will be employed in a managerial capacity. Therefore, we 
will only address this claim in our decision and will not consider whether the Beneficiary would be 
employed 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. 
Based on the statutory definition of managerial capacity, the Petitioner must first 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). The Petitioner must also 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); Champion World, 940 F.2d 1533. 
The 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 capacity. See 8 C.F.R. § 214.2(1)(3)(ii). 
Beyond the required description of the job duties, we examine the company's organizational 
structure, the duties of the Beneficiary's subordinate employees, the presence of other employees to 
relieve the Beneficiary from performing operational duties, the nature of the business, and any other 
factors that will contribute to understanding the 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 and its staffing levels. 
A. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we take into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. See section 10l(a)(44)(C) of the Act. 
In the present matter, the Petitioner claimed 14 employees, including the Beneficiary, at the time this 
petition was filed. The Petitioner claimed no net income and claimed $10 million in "funding" as its 
gross annual income. 
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Matter of S-, Inc. 
In a supporting statement, the Petitioner stated that the Beneficiary's priority would be to recruit and 
train a staff of professional subordinates to occupy the positions of iOS developer, graphics designer, 
database administrator, and systems analyst. The Petitioner explained that it is waiting to hire the 
subordinate staff until the Beneficiary's arrival so that the Beneficiary can oversee the new hires. 
The Petitioner also provided an organizational chart in which the chain of command indicates that 
the Beneficiary would be subordinate to the engineering department director, who would answer 
directly to the company's CEO. The chart indicates that the Beneficiary will oversee five IT-based 
subordinates as indicated in the supporting statement. However, as the Petitioner readily admitted, 
the IT subordinates had not been hired at the time this petition was filed; thus, there would be no 
subordinate staff for the Beneficiary to oversee immediately upon his arrival. 
In a request for evidence (RFE), the Director noted that although the Petitioner's organizational chart 
indicates that the Beneficiary will have a subordinate staff, it did not adequately explain how they 
will relieve the Beneficiary from having to perform primarily non-managerial duties. The Petitioner 
was instructed to submit employee job titles and job duties, payroll evidence, and employment 
agreements for newly hired employees whom the Beneficiary would manage. 
The Petitioner provided a response statement claiming that the Beneficiary will have five 
subordinates who will relieve him from having to perform primarily non-managerial job duties and 
over whom the Beneficiary will have discretionary authority. In a separate letter, the Petitioner 
stated that the Beneficiary will start hiring his subordinates as soon as he begins his employment in 
the United States. 
In the denial decision, the Director determined that the Petitioner did not establish that the 
Beneficiary would oversee and have the authority to hire, fire, or exercise other personnel actions 
over supervisory, professional, or managerial employees. We find that the Petitioner's 
organizational chart depicts the Beneficiary in a position where he would have authority over his 
prospective subordinates; however, given that there were no subordinates for the Beneficiary to 
oversee at the time this petition was filed, the Director correctly denied the petition based on a 
finding that the Petitioner did explain how the Beneficiary would be relieved from . having to 
primarily perform non-managerial job duties. 
On appeal, the Petitioner contends that the Beneficiary will first be required to hire a subordinate 
staff, which it claims is a managerial job duty. The Petitioner does not, however, provide a precise 
hiring timeline or explain who, other than the Beneficiary, would carry out the job duties of the 
engineering department in the meantime. While the Beneficiary is not required to allocate 100% of 
his time to managerial-level tasks, the Petitioner must establish that the non-managerial job duties 
would only be incidental to, as opposed to the main focus of, 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, e.g., sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); Matter of Church Scientology Int'/, 19 I&N Dec. 593,604 (Comm'r 1988). 
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Matter of S-, Inc. 
In the present matter, the Petitioner claims on appeal that the Beneficiary will rely on the foreign 
entity's engineering support staff until he is able to hire a U.S.-based staff to take over the 
engineering department's duties. However, it does not provide clarifying information explaining 
how an arrangement with the foreign entity's staff would work in terms of expecting a foreign-based 
staff to perform services simultaneously for the Petitioner and the foreign entity while working full­
time for the foreign entity. It is also unclear why the Petitioner did not provide an organizational 
chart that is consistent with its current claim on appeal. 
Furthermore, if the Petitioner was planning to rely on the foreign entity's support staff, even if only 
on a temporary basis, it is unclear why it did not make this claim at the time of filing or in the 
multiple statements it provided in response to the RFE. 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 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
Thus, it may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. See Matter of Jzummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 
1998). As the Petitioner in this instance did not, prior to filing this appeal, claim that the foreign­
based staff would support the Beneficiary in his proposed position, we will not consider the new 
claim on appeal. 
In sum, the Petitioner has not provided sufficient evidence to demonstrate that the engineering 
department was adequately staffed to support the Beneficiary in a managerial position at the time 
this petition was filed. 
B. Duties 
We also reviewed the Beneficiary's proposed job description and find that the Petitioner provided 
insufficient evidence to establish that the Beneficiary would perform primarily managerial job duties 
in his proposed position. 
In a supporting exhibit, the Petitioner provided a list of 13 proposed job duties that the Beneficiary 
would carry out in his proposed position. Of those 13 job duties, nine pertained directly to taking 
some form of personnel action or communicating with existing personnel, as indicated by the 
Petitioner's reference to a "team" of employees. 
In the RFE response, the Petitioner provided the same list of duties and responsibilities, adding a 
percentage breakdown to show how the Beneficiary would distribute his time among the list of his 
assigned job duties. The job duty breakdown indicates that approximately 65% of the Beneficiary's 
time would be spent on some type of interaction with personnel, including managing the engineering 
staff, ensuring that team members understand their respective roles, overseeing the work of 
subordinates, hiring and firing employees and taking disciplinary actions when necessary, 
monitoring employees' daily performances, rewarding employees for good performance, soliciting 
employee feedback, and resolving disputes among team members. 
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Matter of S-, Inc. 
As discussed earlier in this decision, the Petitioner did not yet employ a ''team" of employees for the 
Beneficiary to oversee, monitor, or coordinate. Therefore, at best, the job description is a projection 
of job duties that the Beneficiary may carry out at some indefinite time in the future. With the 
exception of hiring employees, to which the Beneficiary would allocate only 5% of his time, the 
Beneficiary could not have carried out the rest of his personnel management job duties at the time of 
filing, nor would he be able to carry out those duties upon commencing his employment with the 
Petitioner, as the engineering department would remain unstaffed until the Beneficiary hires the 
required employees to fill the positions that are currently vacant. We note that the Petitioner must 
establish that all eligibility requirements for the immigration benefit have been satisfied from the 
time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). Given the lack of a 
subordinate staff in the engineering department, it does not appear that the Petitioner had the 
capacity to employ the Beneficiary in a managerial capacity at the time of filing. In other words, the 
job description that the Petitioner provided is not an accurate reflection of the job duties that the 
Beneficiary could have realistically performed at the time this petition was filed. In fact, it is unclear 
when the Beneficiary would be able to perform his proposed job duties, given the undefined 
timeframe for hiring subordinate employees to staff the engineering department. 
Although the Petitioner states that the Beneficiary is essential to its operations because he "knows all 
the ins and outs of the business," his level of knowledge does not establish that the job duties he 
would perform upon commencing his employment in the United States would be primarily 
managerial. The claim that the Beneficiary would be tasked with hiring five employees to staff the 
engineering department indicates that the Petitioner did not have the ability to relieve the Beneficiary 
from having to perform that department's operational tasks. Although the Petitioner claimed that 
employees from its related entity abroad would support the Beneficiary in his proposed position, it 
did not provide sufficient details about this claimed arrangement, nor did it make this claim prior to 
filing an appeal. 
In light of the above, we find that the Petitioner did not establish that the Beneficiary would 
primarily perform managerial job duties in his proposed position. 
III. 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 capacity. The appeal will be dismissed for 
this reason. 
ORDER: The appeal is dismissed. 
Cite as Matter of S-, Inc., ID# 1637227 (AAO Sept. 20, 2018) 
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