dismissed L-1A Case: Electrical Component Manufacturing

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 8, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a manufacturer of electrical components, industrial harnesses and cables, seeks to 
temporarily employ the Beneficiary as its business process director under the L-1 A nonimmigrant 
classification for intracompany transferees . See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(L), 8 U.S.C. § 110l(a)(l5)(L). TheL-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, California Service Center, denied the petition. The Director concluded that the 
evidence of record did not establish that the Beneficiary's foreign employer, the Petitioner's 
Mexican subsidiary, has employed her in a managerial or executive capacity or in a position 
involving specialized knowledge.' 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director 
incorrectly interpreted and applied the legal definition of a "functional manager," and did not 
correctly consider and appreciate the pertinent evidence it provided in support of the petition. 
Upon de novo review, we will dismiss the appeal. : 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification , a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. Section 10l(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, executive , or specialized knowledge 
capacity. ld. 
1 The Petitioner assetts that the Beneficiary has been employed in a managerial capacity with its Mexican affiliate , 
specifically as a function manager . Therefore we restrict our analysis to whether the Beneficiary has been employed in a 
managerial capacity. 
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The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition tiled on Form I-129, 
Petition 
for a Nonimmigrant Worker, shall be accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(l)(l)(ii)(G) ofthis section. 
(ii) · Evidence that the alien will be employed in an executive, managerial , or 
specialized knowledge capacity , including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that the 
alien's prior education, training, and employment qualifies him/her to perform 
the intended services in the United States; however , the work in the United 
States need not 
be the same work which the alien perfmmed abroad. 
Section l0l(a)(44)(A) ofthe Act, 8·U.S.C. § IIOI(a)(44)(A), defines the te1m "managerial capacity " 
as "an assignment within an organization in which the employee primarily ": 
(i) manages the organization , or a department, subdivision, function, or 
component of the organization; 
(ii) 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; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee is 
directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. 
Further, "[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. " ld. 
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If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, we must take into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development ofthe organization. See section 10l(a)(44)(C) ofthe 
Act. 
II. FOREIGN EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director found that the Petitioner did not establish that the foreign entity has employed the 
Beneficiary in a managerial capacity. The Director acknowledged the Petitioner ' s claim that the 
Beneficiary manages an essential function but fqund insufficient evidence describing the function 
managed or illustrating that the Beneficiary manages the function rather than performs the non­
managerial duties related to the function. Further, the Director emphasized that the Petitioner did 
not provide the foreign entity's organizational chart to illustrate the Beneficiary's position within the 
company's hierarchy or to demonstrate who relieves the Beneficiary from performing the day-to-day 
duties of the function she is claimed to manage . 
On appeal, the Petitioner emphasizes that it submitted substantially similar information for the 
Beneficiary's current foreign and proposed U.S. positions, and asse1is that the Director acted 
arbitrarily by finding that one position is in a managerial capacity while the other is not. Further , the 
Petitioner contends that , as 
there is no regulatory definition of the term "function manager," it should 
be given deference in detailing the job duties in terms "which it believes to meet the spirit of 
'functional management."' Finally, in response to the Director's finding that it did not provide an 
organizational chart , the Petitioner asserts that a chart "does not adequately capture the 
responsibilities of a functional manager. " The Petitioner asserts that the submitted letters provided a 
narrative description of the reporting structure , by indicating that the Beneficiary ' s role supports 
executive staff and "may also include direction of professional stafl: " 
Upon review of the petition and the evidence of record, including the Petitioner's statement in 
support of the appeal, the Petitioner has not established that the foreign entity employs the 
Beneficiary in a managerial capacity. 
When examining the managerial capacity of the Beneficiary, we will look first to the Petitioner's 
description of the job duties. See 8 C.F.R . § 214.2(l)(3)(ii). The definitions of managerial and 
executive capacity each have two parts. First , the Petitioner must show that the Beneficiary 
performs 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 primarily 
engages in managerial or executive duties, as opposed to ordinary operational activities alongside 
other company employees. See Family Inc. v. USC1S, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940· F.2d 1533. 
The Petitioner initially provided a broad overview of the Beneficiary ' s responsibilities as business 
process manager , noting that the position involves both management of an essential function and 
oversight of professional personnel. For example , the Petitioner stated that the Beneficiary 
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"oversees our business analyst team," "oversees cost savings and improvements projects," has the 
authority to "develop and introduce new tools methods and strategies," and "ensures the integrity of 
systems that optimize our business processes ... and supply chain operations." However, the 
Petitioner did not identifY or document the "business analyst team," explain what specific tasks the 
Beneficiary performs to oversee projects and who carries out the projects, or indicate who develops 
tools and who performs the day-to-day duties required to ensure systems integrity. Without this 
information, the description was not sufficiently detailed to establish that the Beneficiary's actual 
duties are managerial in nature. 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). 
The Petitioner stated that the Beneficiary's position is at a senior level, noting that she provides 
reports to the CEO and CFO and provides "direct analytical and systems analysis support" for the 
executive VP of global business process, the vice president of purchasing, the operational controller 
and the director ofinformation_systems. However, the Petitioner did not further describe the reports 
the Beneficiary provides to executives, who collects the data needed to prepare them, or what 
specific managerial tasks are involved in providing "analytical and systems analysis support" to 
these managerial and executive staff. The actual duties themselves reveal the true nature of the 
employment. Id. A beneficiary cannot be deemed a managerial or executive employee simply 
because he or she supports or liaises with executives or managers. The Petitioner did not, for 
example, submit an organizational chart showing the Beneficiary's actual placement within the 
foreign entity's hierarchy and the "Global Information Technology" organizational chart submitted 
did not include the positions mentioned in the Beneficiary's job description or show her placement 
in relation to these positions. 
The Petitioner provided the requested breakdown of the Beneficiary's duties in response to the 
Director's Request for Evidence (RFE), but again did not identify who carries out the day-to-day 
tasks of the functions the Beneficiary is claimed to manage. For example, the Petitioner stated that 
the Beneficiary manages testing operations by "managerially ensuring" the installation, testing, 
maintenance and monitoring of computer programs and systems, but did not explain how she 
accomplishes this goal or who carries out these lower-level functions. Similarly, the Petitioner 
stated that the Beneficiary "directs the development, documentation and revision" of system design 
and test procedures but did not explain who actually develops and documents the procedures. The 
Petitioner noted that she "may" direct professional staff as part of her responsibility for coordinating 
the expansion and modification of systems but did not further identify these staff or how frequently 
the Beneficiary relies on subordinate staff to perform non-qualifying duties. Finally, the Petitioner 
stated that the Beneficiary coordinates the explanation and modifications of systems, and 
"managerially ensures" that correction of system errors, but, once again, did not identify who is 
tasked with actually troubleshooting and supporting these systems. 
The duties describe above, which account for 54 percent of her time, imply that there is a need for 
subordinate IT staff to relieve the Beneficiary from having to perform the non-qualifying duties 
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associated with her management of the company ' s computer and software systems. However , in 
response to the RFE and on appeal, the Petitioner has not claimed that the Beneficiary regularly 
supervises subordinate employees, even after initially claiming that the Beneficiary performs 
supervisory duties as a personnel manager and has a subordinate team of professional analysts under 
her direct supervision. The Petitioner has not resolved these inconsistencies with independent , 
objective evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 
(BIA 1988). 
The remaining duties submitted in response to the RFE include non-managerial duties such as 
reviewing and analyzing data to locate problems, conferring with clients regarding system 
requirements, reading manuals and technical reports to keep up to date, providing stafi with "senior 
assistance" in solving computer problems , determining hardware and software needs , and 
coordinating and linking computer systems to ensure compatibility. Further, we note that, other than 
indicating that the Beneficiary spends 2 percent of her time on "consult[ing] with management to 
ensure agreement on system principles ," the breakdown of the Beneficiary ' s duties did not include 
responsibilities for reporting ·to, liaising with or otherwise interacting with high-level executives , 
despite the Petitioner ' s claim that such duties are a critical indicator of the Beneficiary ' s managerial 
position. 
Overall, the position descriptions submitted are not adequately specific , contain inconsistencies 
regarding whether the Beneficiary actually supervises subordinate personnel , and include a number 
of non-qualifying duties . For these reasons, the descriptions alone are insut1icient to support the 
Petitioner ' s claim that the Beneficiary performs primarily managerial duties . 
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 compan y' 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. In the case of a function manager , where no subordinates are directly supervised, th~s e 
other factors may include a beneficiary ' s position within the organizational hierarchy, the depth of 
the petitioner ' s organizational structure , the scope of the beneficiary's authority and its impact on the 
petitioner's operations , and the indirect supervision of employees within the scope of the function 
managed. 
The statutory definition of "managerial capacity" allows for both "personnel managers " and 
"function managers. " See section 101(a)(44)(A)(i) and (ii) of the Act. The Petitioner maintain s that 
the Beneficiary's position with the foreign entity is a "function manager" position. 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 the beneficiary will manage an essential function , 
a petitioner must clearly describe the duties to be performed in managing the e,ssential function, i.e., 
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identify the function with specificity, articulate the essential nature of the function, and establish the 
proportion of a beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. 
§ 214.2(1)(3)(ii). In addition, the petitioner's description of a beneficiary's daily duties must 
demonstrate that the beneficiary will manage the function rather than performs the duties related to 
the function. 
The Petitioner states that the Beneficiary acts as a function manager by overseeing and directing "the 
company ' s computer systems " and that her role is "critical to [the company's] supply chain 
management." As discussed, the Beneficiary's job description indicates that she is responsible for 
managing or overseeing a number of activities, accounting for more than half of her time, which 
reasonably imply the need for other personnel to perform non-qualifying tasks associated with these 
activities. We acknowledge that the Beneficiary is not required to directly supervise personnel in 
order to qualify as a function manager. However, given the nature of her duties and her 
responsibility for "directing" and "overseeing " a number of IT data collection , design, development, 
implementation and support activities, the Petitioner must establish that someone other than the 
Beneficiary performs the day-to-day, non-managerial duties associated with the "computer systems " 
function she is claimed to manage. The Petitioner has not met this burden. 
As noted the Petitioner initially expressly stated that the Beneficiary's "combines two types of 
managerial roles" including both function management and "oversight of professional personnel." 
The Petitioner stated in its letter in support of the petition that she "oversees a team of Analysts 
(degreed professionals) ," that she mentors and motivates this team and directs their activities. The 
Petitioner did not include these duties in its expanded description submitted in response to the RFE 
and no longer appears to claim that she oversees this team. In fact, in reviewing the breakdown of 
the Beneficiary's duties submitted in response to the RFE, the Petitioner stated that one duty 
requiring 17 percent of her time "may" require supervision of subordinates. We have reviewed the 
combined organizational chart for the company's Global Information Technology department, but 
we are unable to locate that Beneficiary's current position and cannot determine where it falls within 
the Mexican company's hierarchy, or who she may directly or indirectly supervise in Mexico. On 
appeal, the Petitioner only references "junior analysts" who assist the Beneficiary with duties such as 
collecting data 
needed for reports, but again, we cannot determine based on the limited information 
provided who relieves the Beneficiary from the day-to-day activities of managing her claimed 
function. 
Similarly, the Petitioner has not submitted sufficient evidence to establish that the Beneficiary ' s 
position in Mexico is at a senior level within the organizational hierarchy, or to support its claim that 
the position reports directly to the CEO, CFO and a number of senior vice presidents. Again, the 
submitted organizational chart does not include the Beneficiary's current position in Mexico and we 
cannot determine where the position falls within this hierarchy. The Petitioner must support its 
assertions with relevant, probative, and credible evidence. See Matter of' Chawathe, 25 I&N Dec. 
369, 376 (AAO 201 0). 
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For these reasons, we cannot determine that the Beneficiary is primarily managing the claimed 
essential function qr that other staff are performing most of the non-managerial functions associated 
with the company's computer systems. Accordingly, the Petitioner has not established that the 
foreign entity employs the Beneficiary as a function manager. 
Finally , we acknowledge the Petitioner's claim that it submitted substantially similar positiOn 
descriptions"for the Beneficiary 's current and proffered positions. While there is significant overlap 
in the duties , and the U.S. position will include some non-qualifying duties, the Petitioner 
specifically stated that the Beneficiary will spend approximately 40 percent of time in the United 
States directly overseeing, managing and delegating tasks to subordinate personnel who are in fact 
identified in the record, and has submitted an organizational chart which depicts the placement ofher 
proposed U.S. position within the company ' s hierarchy along with these subordinate staff. 
Therefore, the Petitioner was able to establish by a preponderance of the evidence that the 
Beneficiary would be employed in the United States in a managerial capacity , but for the reasons 
discussed above, did not meet this burden with respect to her current position within the foreign 
entity. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary has been employed abroad in a managerial capacity. 
III. CONCLUSION 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains with the 
petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed . 
Cite as Matter of ID# 134824 (AAO Feb. 8, 2017)