dismissed L-1A Case: Diamond Trading

U.S. Citizenship 
and Immigration 
Services 
In Re: 6968792 
Appeal of Texas Service Center Decision 
Form I-129, Petition for L-IA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 7, 2020 
The Petitioner seeks to continue employing the Beneficiary as the corporation's general manager 
under the L- lA nonimmigrant visa classification for managers and executives. See Immigration and 
Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The Director of the Texas Service Center denied the petition. The Director concluded that, contrary 
to the Act and Department of Homeland Security regulations, the Petitioner did not demonstrate that 
it would employ the Beneficiary in a managerial or executive capacity. 
The Petitioner bears the burden of establishing 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. 1 
I. NONIMMIGRANT MANAGERS AND EXECUTIVES 
An L-1 A petitioner must establish that it or a parent, branch, subsidiary, or affiliate employed a 
beneficiary abroad in a managerial or executive capacity , or in a position involving specialized 
knowledge, for at least one continuous year in the three years before his or her admission into the 
United States. 8 C.F.R. §§ 214.2(1)(3)(i), (iii), (iv). A petitioner must also demonstrate that it would 
employ a beneficiary in a managerial or executive capacity. 8 C.F.R. § 214.2(1)(3)(ii). Supporting 
evidence need not accompany an L- lA extension petition, but a director may request it. 8 C.F.R. 
§ 214.2(1)(14(i). 
II. THE PROPOSED U.S. POSITION 
The Petitioner here does not clearly assert whether it would employ the Beneficiary in a managerial 
or executive capacity. We will therefore consider both possibilities. 
1 The Petitioner filed two appeals in this matter. Both Forms I-290B, Notice of Appeal, however, indicate their 
submissions on the same day, challenging the same decision. Because the Petitioner's appeals are duplicative, this 
decision also applies to Form l-290B with receipt numbd I 
The term "managerial capacity" means an assignment where an employee would primarily: 1) 
manage an organization, or its department, subdivision, function, or component; 2) supervise and 
control the work of other supervisory, professional, or managerial employees, or manage an essential 
function within the organization, its department, or subdivision; 3) have authority over personnel 
actions if a direct supervisor, or function at a senior level within the organizational hierarchy or with 
respect to a function managed; and 4) exercise discretion over the day-to-day operations of the 
activity or function managed. Section 101(a)(44)(A) of the Act; 8 C.F.R. § 214.2(l)(l)(ii)(B). 
Unless supervising professional employees, "[a] first-line supervisor is not considered to be acting in 
a managerial capacity merely by virtue of the supervisor's supervisory duties." Id. 
The definition of "managerial capacity" includes management of either personnel or functions. The 
Petitioner does not contend that the Beneficiary would manage a company function. We will 
therefore consider only whether he would serve as a personnel manager. 
The term "executive capacity" means an assignment where an employee would primarily: 1) direct 
the management of an organization or a major component or function of it; 2) establish the goals and 
policies of the organization or its component or function; 3) exercise wide latitude in discretionary 
decision-making; and 4) receive only general supervision or direction from higher-level executives 
of the organization, its board of directors, or its stockholders. Section 10l(a)(44)(B) of the Act; 
8 C.F.R. § 214.2(l)(l)(ii)(C). 
A petitioner proposing managerial or executive employment in the United States must show that a 
beneficiary would assume the high-level responsibilities described in the statutory and regulatory 
definitions of the terms "managerial capacity" or "executive capacity." Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). A petitioner must also prove that a 
beneficiary would primarily perform managerial or executive duties, as opposed to operational tasks. 
Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
When determining the managerial or executive nature of a proposed position, U.S. Citizenship and 
Immigration Services (USCIS) examines the position's job duties. USCIS also considers: a 
petitioner's organizational structure and the nature of its business; whether other employees would 
relieve a beneficiary from performing operational duties; the job duties of subordinate employees; 
and other factors affecting the nature of a beneficiary's position. 
Here, the Petitioner describes itself as a wholesale, diamond trader. Its website indicates that it buys 
and sells diamonds and makes jewelry. The Petitioner states that it seeks to continue employing the 
Beneficiary as general manager, a position responsible for managing its business operations. 
The Petitioner initially described the position as involving the following duties and percentages of 
time: 
• Sales act1v1t1es (40%). Oversee sales manager. Formulate company sales policies. 
Authorize and review performance evaluations of sales employees. Set and monitor sales 
goals. Review market analysis reports. Attend major trade shows (5% of the time allotted 
for sales activities); 
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• Financial act1v1t1es (20%). Oversee operations manager. Define and allocate quarterly 
budgets. Review quarterly reports. Investigate relevant factors to formulate business plans. 
Decide company's financial activities and needs; 
• Hire/fire employees, identify problems, and resolve policies and procedures with foreign 
affiliate. (30%). Recruit staff and oversee their training. Establish personnel policies. 
Initiate new policies and procedures. Resolve problems. Forward reports to foreign affiliate. 
Evaluate performances of employees; 
• Dealing with organization's lawyers (5%). When major negotiations required, consult and 
advise lawyers regarding collections and claims; and 
• Finalize quarterly and annual reports for review of foreign affiliate (5%). Coordinate with 
foreign affiliate to ensure availability and quality of goods. 
In response to a written request for additional evidence (RFE), however, the Petitioner provided the 
following job duties and time percentages for the position: 
• 15%. Manages administrative, logistical, human resources, and accounting services to 
support operations. Ensures sales manager achieves goals. Evaluates effectiveness of 
marketing program and recommends improvements. Develops strategies to improve quality 
and productivity and ensures compliance. 
• 15%. Sets yearly sales targets. Regularly meets with sales team. Ensures sales manager 
taking new measures to increase sales. Reviews sales reports and revised plans of action. 
• 5%. Attend major jewelry shows. Reports trends and new ideas to president and foreign 
management. Identifies new business opportunities. 
• 15%. Oversee operation manager's establishment and enforcement of office systems. 
Determine staffing requirements and ensure prompt filling of vacancies. Address customer 
inquiries. Advises president on policies and growth of foreign affiliate. 
• 10%. Ensures prompt payments. Checks prices of goods. Oversees inventory levels. 
Ensures finalization of contracts with vendors. 
• 25%. Ensures proper orientation of sales employees. Ensures properly training of staff. 
Monitors administration of personnel policies. Monitors staff decorum and discipline. 
Authorizes hiring/firing of employees. 
• 15%. Oversee operations manager in budget preparation and expense management. 
Proposes and finalizes budgets. Monitor's budget implementation. Conducts final review of 
tax returns. 
The new job duties and time percentages differ from those previously provided. The Petitioner has 
not explained the change in the position's duties and time percentages. The unexplained differences 
cast doubt on the accuracy of the information provided. See Matter of Ho, 19 I&N Dec. 58, 592 
(BIA 1988) (requiring a petitioner to resolve inconsistencies of record with independent, object 
evidence pointing to where the truth lies). 
Also, as the Director found, many of the Petitioner's job-duty descriptions are vague. For example, 
the Petitioner states that the offered position involves setting various goals and policies. But the 
company did not provide sufficient examples of these goals and policies, or explain how the 
Beneficiary would develop and implement them. Evidence of a beneficiary's employment in a 
managerial or executive position must include "a detailed description of the services to be 
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performed." 8 C.F.R. § 214.2(1)(3)(ii). The Petitioner's descriptions of the proposed job duties are 
not specific enough to determine the Beneficiary's daily activities. Specifics are important 
indicators of the managerial or executive natures of jobs, otherwise petitioners could obtain 
approvals by providing job-duty descriptions that simply mirror the statutory and regulatory 
definitions of the terms managerial and executive capacity. 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 addition, the Petitioner's descriptions contain many job duties that the record does not establish as 
managerial or executive in nature. Such duties include: recruiting staff and overseeing their training 
and orientation; resolving problems; forwarding reports to a foreign affiliate; evaluating employee 
performances; communicating with lawyers; attending trade shows; reviewing tax returns; 
addressing customer inquiries; and identifying new business opportunities. Because the Petitioner 
does not specify the amounts of time that many of these duties would entail, the record does not 
establish that the Beneficiary would primarily work in a managerial or executive capacity. 
The Petitioner's evidence on appeal establishes the Beneficiary's authority over personnel actions. 
Contrary to the Director's decision, the record also demonstrates that subordinate employees would 
likely relieve the Beneficiary of a need to perform operational duties. Based on the previously 
discussed defects in the Petitioner's job-duty descriptions, however, the overall record does not 
demonstrate the managerial or executive nature of the offered position. 
III. THE QUALIFYING RELATIONSHIP 
Although unaddressed by the Director, the record also does not establish a qualifying relationship 
between the Petitioner and the Beneficiary's prior employer in India. For L visa purposes, a U.S. 
firm and foreign entity must "exactly" meet one of the qualifying relationships specified in the 
definitions of the terms parent, branch, affiliate, or subsidiary. 8 C.F.R. § 214.2(l)(l)(ii)(G)(l). 
On the L Classification Supplement to Form I-129, Petition for a Nonimmigrant Worker, the 
Petitioner identified the Beneficiary's foreign employer as its affiliate. The definition of "affiliate" 
includes "[ o ]ne of two subsidiaries both of which are owned and controlled by the same parent or 
individual." 8 C.F .R. § 214.2(1)(1 )(ii)(L ). In turn, the definition of "subsidiary" includes a legal 
entity of which another owns more than half and controls. 8 C.F.R. § 214.2(l)(l)(ii)(K). The 
Petitioner stated that its president owns all of its stock and 90% of the Beneficiary's former 
employer in India. Thus, the Petitioner claims that, because the same individual owns and controls 
more than halves of it and the Indian company, the foreign entity constitutes the Petitioner's affiliate. 
Contrary to the Petitioner's claim, however, the record does not indicate that its president owns and 
controls more than halves of the entities. Copies of the Petitioner's federal income tax return for 
2017, the most recent of record, states the president's ownership of only 20% of the Petitioner's 
stock. The tax return indicates that an estate owns about 53% of the Petitioner, with another person 
owning about 27%. Also, copies of the Indian company's articles of association do not identify the 
Petitioner's president as an owner. Rather, the articles indicate that two other people own interests 
in the foreign entity. The record therefore does not establish a qualifying relationship between the 
Petitioner and the Beneficiary's foreign employer. For this additional reason, the petition may not 
be approved. In any future filings in this matter, the Petitioner must explain its statements on the L 
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supplement and submit independent, objective evidence of a qualifying relationship between it and 
the Indian entity. 
IV. CONCLUSION 
The record on appeal does not establish the Petitioner's proposed employment of the Beneficiary in 
a managerial or executive capacity. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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