dismissed L-1A Case: Equestrian Photography

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-USA, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 20,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a photography company specializing in equestrian events. seeks to continue the 
Beneficiary's temporary employment as its communications 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. § 1101(a)(l5)(L). The L-lA 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 Beneficiary would be employed in a managerial capacity under the 
extended petition. 2 
On appeal, the Petitioner objects to the Director's finding that it did not provide a sufficiently 
detailed description of the Beneficiary's duties. The Petitioner asse11s that the record demonstrates 
that the Beneficiary will continue to manage an ''essential department" of the company and perform 
primarily managerial duties that are consistent with the size and scope of the organization. 
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 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 or executive capacity. !d. 
1 
The Petitioner previously filed an L-1 A classification petition on the Beneficiary· s behalf which was approved for the 
period from January 8, 2014, until January I, 2017. 
2 The Petitioner does not claim that it would employ the Beneficiary in an executive capacity. 
Matter qfS-USA, Inc. 
"Managerial capacity" means as an assignment within an organization 111 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 
10l(a)(44)(A) 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) takes 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) ofthe Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
In the denial decision, the Director concluded that the Petitioner did not provide a sufficiently 
detailed description of the Beneficiary's job duties to support its claim that she would be employed 
in a managerial capacity. Further, the Director observed that the Petitioner submitted two 
significantly different organizational charts and found that the Petitioner had made material changes 
in order to make a deficient petition conform to the requirements for this classification. Finally. the 
Director concluded that the Petitioner had not shown that it has employees to relieve the Beneficiary 
from performing non-man~gerial job duties associated with the company"s marketing and 
communications function. 
On appeaL the Petitioner contends that the Director appears to have overlooked the Beneficiary"s 
detailed job description and asserts that the Beneficiary "'manages [the Petitioner"s] communications 
and marketing department; she manages an essential department ... : she functions at a senior level 
within the [Petitioner's] hierarchy as well as with respect to the communications and marketing 
department; and she exercises discretion over the day-to-day operations" of that department. The 
Petitioner reiterates the Beneficiary's job duties and asserts that they clearly mirror the definition of 
managerial capacity. 
Further, the Petitioner asserts that it did not intend to materially alter the petition hy submitting a 
revised organizational chart and was simply attempting to provide the more detailed information 
requested in the Director's request for evidence (RFE). The Petitioner maintains that the 
Beneficiary's job duties alone are sutlicient to establish that she is employed as a manager. given the 
size and scope of the company. 
When examining the managerial or executive capacity of a given beneficiary, we will review the 
petitioner's description of the 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 arc in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of 
the job duties, USC IS examines the company's organizational structure. the duties of a beneficiary" s 
2 
Matter o(S-USA, Inc. 
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. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along \Vith evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Duties 
Based on the definitions 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). Second, the Petitioner must prove that the Bene liciary will 
be primarily engaged in managerial duties, as opposed to ordinary operational activities alongside 
the Petitioner's other employees. See Family Inc. r. l!SCIS'. 469 F.3d 1313, 1316 (9th Cir. 2006): 
Champion World, 940 F.2d at 1533. 
The Petitioner, which creates, distributes, markets, and sells photographs, seeks to continue the 
Beneficiary's employment as its communications manager. The Petitioner provided a narrative 
description of the Beneficiary's duties in its initial supporting letter, noting that she will continue to 
direct and coordinate its marketing and communications department. In the RFE. the Director 
advised the Petitioner that the initial description lacked sufficient detail to establish that the 
Beneficiary's duties would be primarily managerial. The Director suggested that the Petitioner 
provide a Jetter from a company representative clearly describing the Beneficiary's typical 
managerial duties, and the percentage of time spent on each specific task. 
In response, the Petitioner listed essentially the same duties in bulleted format, noting that the 
Beneficiary will: 
• devise and coordinate our marketing and communications ctfort; 
• oversee marketing efforts concerned with the pricing. sales and distribution of our 
photographs and services; 
• establish and implement departmental policies, goals. objectives and procedures: 
• develop branding strategies; 
• engaging our future marketing professionals 3; 
• coordinate and oversee marketing activities and policies to promote our products 
and services; 
• serve as our spokesperson to the media and the general public: 
• develop and distribute materials to explain our internal policies: 
• issue press releases, arrange interviews, and compile press kits to further develop 
our business; 
• our [sic] pricing strategies to maximize our pro tits and to increase our share of the 
United States market. .. ; [and] 
3 
The Petitioner states that it intends to employ a marketing manager in the future. 
3 
Matter ofS-USA, Inc. 
• monitor trends in the equestrian photography industry indicating the need to 
develop new products and services. 
The Petitioner also stated that the Beneficiary is in charge of its franchise development etTorts. The 
Petitioner provided a copy of its franchise agreement with a Canadian company and noted the 
Beneficiary's responsibility to ensure the franchise owner's adherence to the terms of the agreement 
and to coordinate marketing efforts between the United States and Canada. The Petitioner stated 
these activities require 20 percent of the Beneficiary's time. Finally, the Petitioner added that the 
Beneficiary will conduct market research and ··work with developers. advertisers. and production 
managers to market our services." 
However, the Petitioner's response to the RFE did not include additional details regarding the nature 
of the Beneficiary's day-to-day duties. Nor did it indicate the amount of time the Beneficiary would 
allocate to most of the listed duties. although the Director specifically noted this information is 
needed to assist in establishing that the position involves primarily managerial duties. We agree 
with the Director's conclusion that the description is insut1icient to demonstrate that the duties are 
primarily managerial in nature. 
Some of the stated duties, such as performing market research. serving as a spokesperson. issuing 
press releases, compiling press kits. monitoring industry trends, and marketing the company's 
services by working with advertisers, are not managerial functions and indicate the Beneficiary 
directly performs all market research, public relations, and communications activitics. 4 Other duties, 
such as "oversee marketing efforts,'' "coordinate our marketing and communications effort:· and 
"coordinate and oversee marketing activities," are listed as separate responsibilities. but the 
Petitioner did not provide sufficient detail to explain what these responsibilities entail. how they 
differ from each other, or what specific tasks are associated with any of them. 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). 
Based on the description provided, it appears that the Beneficiary does have authority over day-to­
day decisions regarding marketing and communications. including responsibility for coordinating 
with the Petitioner's Canadian franchise. However. she is also required to carry out the non­
managerial activities associated with her department's daily operation because. as discussed further 
below, the record does not establish that anyone else \vorks. directly or indirectly. for the 
department. We are unable to determine whether the claimed managerial duties constitute the 
majority of the Beneficiary's duties, or whether the Beneficiary primarily performs non-qualifying 
administrative or operational duties. Although the Director advised the Petitioner of the need for this 
information, the Petitioner's description of the Beneficiary's job duties docs not establish what 
4 
In addition, as discussed further below, one of the submitted organizational charts indicates that the Beneficiary is 
responsible for the Petitioner's website and social media accounts, and also depicts her as one of the company"s 
photographers. None of these job duties were included in job descriptions the Petitioner provided in its letters. 
4 
.
Matter ofS-USA, Inc. 
proportion of the duties is managerial in nature, and what proportion Is non-managerial. See 
Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991 ). 
Even though the Beneficiary technically holds the senior position within the marketing and 
communications department as the depatiment's sole employee. the fact that the Beneficiary will 
manage a department does not necessarily establish eligibility for classification as an intracompany 
transferee in a managerial capacity within the meaning of section IOI(a)(44)(A) of the Act. By 
statute, eligibility for this classification requires that the duties of a position be "primarily" 
managerial in nature. Section 101 (A)( 44 )(A) of the Act. 
B. Staffing 
The Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker. that it has seven 
employees. Its organizational chart submitted at the time of tiling shows that the Beneficiary reports 
to the company's operations manager (later identified as the company president), and supervises a 
business development manager, a graphic designer, and a "webmaster apps developer" identified as 
The chart also includes seven photographers, Petitioner"s counsel. and an accounting 
employee. The individuals holding the positions of business development manager and graphic 
designer were also listed as photographers. 
In the RFE, the Director acknowledged the organizational chart. but advised the Petitioner that it did 
not provide sufficient information regarding the personnel the Beneficiary would oversee. such as 
their duties and educational background. The Director requested a more detailed organizational 
chart along with evidence of wages paid to employees and contractors. 
In response, the Petitioner's operations manager explained that he and the Beneficiary are the 
company's only payroll employees. while everyone else on the organizational chart, including the 
photographers are "independent contractors compensated by check... The Petitioner provided a new 
organizational chart listing employees and contractors of both the Petitioner and its French parent 
company. This chart does not include a business development manager or a graphic designer. It 
also does not identify the Beneficiary by job title or indicate that she supervises anyone. Rather. the 
chart appears to depict her as sharing responsibility for the Petitioner's and foreign entity's websites 
with the "webmaster apps developer." Specifically. the chart identities the Beneficiary as 
"respons[i]ble [for] Website Communication on Facebook." It also identities the Beneficiary as one 
of the photographers working for the foreign entity. 
The Petitioner did not explain these changes at the time of the RFE response. It nmv re-submits both 
organizational charts and states that the second chart was intended to be responsive to the Director's 
request for more detailed information. The Petitioner maintains that "managing a graphic designer 
and a webmaster is a normal occurrence for a communications manager,·· and emphasizes that "even 
if the employees listed on the organizational chart had not been engaged by [the Petitioner]. [the 
Beneficiary's] job duties would be more than enough to support the requirements of a managerial 
position.'' 
5 
Matter ofS-USA, Inc. 
However, the Petitioner's statement disregards the obvious differences between the two charts: we 
cannot conclude that one is simply a more detailed version of the other. It may be .. normal .. for a 
communications manager to manage a graphic designer and a webmaster. but the Petitioner has not 
shown that it engaged either of these employees. 5 The latter chart does not show that the Beneficiary 
supervises these positions or that these positions even exist within the company. 
The Director observed that the Petitioner made material changes to make its petition conform with 
the requirements for this visa classification. However, it appears that the initial evidence, which 
identified the Petitioner as having seven employees, including graphic design and business 
development positions which do not appear to exist, actually exaggerated the size and structure of 
the company. The initial evidence also did not identity the Beneficiar.(s responsibilities with 
respect to the Petitioner's website and social media accounts, or her role as a photographer. \Vhich 
were all revealed on the later organizational chart. 
Reviewing the evidence as a whole, the Petitioner has not established that the Beneficiary supervises 
subordinate staff or contractors as part of her daily routine and therefore did not demonstrate that she 
qualities as a managerial employee based on her supervision of subordinate personnel. Although the 
Petitioner asserts that she will be recruiting a marketing manager in the future, 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. § I 03.2(b)(l ). 
The Petitioner claims that the Beneficiary nevertheless manages an "essential department"" \Vithin the 
company as the head of marketing and communications. The term ·'function manager .. applies 
generally when a beneficiary does not supervise or control the work of a subordinate stafT but instead 
is primarily responsible for managing an "essential function'" within the organization . .\'ce 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 manaRe. as 
opposed to perlorm, 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 wi II 
exercise discretion over the function's day-to-day operations.'' Matter o/G- Inc .. Adopted Decision 
2017-05 (AAO Nov. 8, 2017). 
In this matter, the Petitioner has not described or provided evidence that the Beneficiary manages an 
essential function. The Beneficiary, as communications manager. is solely responsible for the 
company's marketing and communications activities. While such activities arc essential to the 
company and she has discretion over these activities, for all of the reasons discussed, the record does 
not show that the Beneficiary is primarily managing this function. rather than performing its day-to-
5 The Petitioner submitted copies of''Work for Hire'' agreements for three photographers (only one of which appeared on 
either organizational chart). It did not provide any evidence related to the persons identified as graphic designer or 
business development manager, nor evidence showing that it engages Solicis or describing the nature and scope of the 
services this company provides. 
Matter ofS- USA. Inc. 
day operational tasks. The record indicates that the Beneficiary is likely performing a number of 
non-managerial duties, including website maintenance, social media communications, and even 
providing photographic services, along with the non-managerial duties that are listed in her stated 
position description. Accordingly, the Petitioner has not established that her actual duties arc 
primarily managerial in nature. 
In addition, the Petitioner emphasizes that we should take into account the size and scope of the 
company, asserting that the Beneficiary"s duties are typical of a marketing and communications 
manager in this type of business. We must take into account the reasonable needs of the 
organization and a company"s size alone may not be the only factor in denying an L-1 A 
classification petition. See section 101(a)(44)(C) of the Act. However, it is appropriate for USCIS 
to consider the size of the petitioning company in conjunction with other relevant factors. such as the 
absence of employees who would perform the non-managerial or non-executive operations of the 
company. Family Inc. v. USCJS, 469 F.3cl 1313 (9th Cir. 2006); S'ystronics Corp. v. INS. 153 F. 
Supp. 2cl 7, 15 (D.D.C. 2001). 
The Petitioner has submitted conflicting information about the size of its organization, but ultimately 
did not establish that it has stafi or contractors who actually perform the day-to-clay. non-managerial 
duties of its communications and marketing department, thereby relieving the Beneficiary from 
having to perform these duties herself. We interpret the statute to prohibit discrimination against 
small or medium-size businesses. However, we also interpret that Act to require all petitioners to 
establish that the beneficiary's position "primarily'" consists of managerial duties, and that it has 
sufficient personnel to relieve a beneficiary from performing operational and administrative tasks. 
The reasonable needs of a petitioner will not supersede the requirement that a beneficiary he 
"primarily'' employed in a managerial capacity as required by the statute. Brazil Quality Stones ''· 
Cher/(~ff, 531 F.3d I 063, 1070 n.l 0 (9th Cir. 2008). Here, the evidence docs not establish that the 
Beneficiary's position meets this requirement and the Petitioner has not met its burden to establish 
that she will be employed in a managerial capacity. 
III. PRIOR APPROVAL 
We acknowledge that USCIS previously approved an L-1 A petition filed on the Beneficiary"s behalf 
for the same position. Each nonimmigrant petition filing is a separate proceeding with a separate 
record and a separate burden of proof. In making a determination of statutory eligibility. USC IS is 
limited to the information contained in that individual record of proceeding. 8 C.F.R. 
§ 103.2(b)(l6)(ii). The burden of proof remains on the petitioner, even where an extension of 
nonimmigrant status is sought. Here. the Director reviewed the record of proceeding and concluded 
that the Petitioner did not establish eligibility for an extension of the nonimmigrant visa petition's 
validity. 
We are not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See Matter ol Church Scientolof.Zv 
lnt '!, 19 I&N Dec. 593. 597 (Comm 'r 1988); see also Sussex Eng 'g. Ltd v. ;\4ontgomery. 825 F.2d 
Matter ofS-USA, Inc. 
1084, 1090 (6th Cir. 1987). Furthermore, we arc not be bound to follow a contradictory decision of 
a service center. La. Philharmonic Orchestra v. INS', No. 98-2855, 2000 WL 282785, at *2 (E.D. 
La. 2000). 
IV. DOING BUSINESS 
Finally, we are unable, through reference to a website maintained by the Florida Secretary of State's 
Division of Corporations (www.sunbiz.org), to detem1ine that the Petitioner continues to be in good 
standing and authorized to do business in Florida. 
Specifically, we found that the company's status has been "inactive·· and "revoked for annual report"" 
since September 22. 2017. If the Petitioner is no longer active. this would raise questions about whether 
it continues to exist as an importing employer, whether it maintains a qualifYing relationship with the 
Beneficiary's foreign employer, and whether it is authorized to conduct business in a regular and 
systematic manner. See section 214(c)(1) of the Act; see also 8 C.F.R. §§ 214.2(1)(1 )(ii)(G) and (l)Cn. 
While we are not denying the petition on this basis, if the Petitioner seeks to pursue this matter 
further, it should submit evidence, such as a certificate of good standing. or any other evidence. to 
demonstrate its good standing in Florida as well as evidence to show that it is actively doing business as 
defined at 8 C.F.R.§ 214.2(l)(i)(2)(H). 
V. CONCLUSION 
The appeal must be dismissed as the Petitioner did not establish that it will employ the Beneficiary 
in a managerial capacity under the extended petition. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-USA. Inc., 10# 817523 (AAO Nov. 20. 2017)