dismissed L-1A Case: Equipment Marketing And Sales

U.S. Citizenship 
and Immigration 
Services 
In Re : 15276970 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 14, 2021 
The Petitioner is engaged in the business of marketing and selling equipment manufactured by its 
claimed foreign affiliate . 1 It seeks to temporarily employ the Beneficiary as its chief executive officer 
under the L-lA nonirnrnigrant classification for intracornpany transferees who are corning to be 
employed in the United States in a managerial or executive capacity. Immigration and Nationality 
Act (the Act) section 101(a)(15)(L) , 8 U.S .C. § l 101(a)(15)(L). 
The Director of the California Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that the Beneficiary would be employed in a managerial or executive capacity . 
The matter is before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish 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. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonirnrnigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in a position requiring 
specialized knowledge for one continuous year within three years preceding the beneficiary's 
application for admission into the United States. 8 C.F.R. § 214.2(1)(1). 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. 8 C.F.R. 
§ 214.2(1)(3)(ii). 
II. U.S . EMPLOYMENT IN A MANAGERIAL CAPACITY 
The issue in this proceeding is whether the Petitioner has established that it would employ the 
Beneficiary in a managerial capacity . 2 
1 The Director did not address or make a determination as to the merits of the Petitioner 's claimed affiliate relationship 
with the Beneficiary 's foreign employer . 
2 The Petitioner does not claim that 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 
10l(a)(44)(A) of the Act. 
To be eligible for L-lA nonimmigrant visa classification as a manager, the Petitioner must show that 
the Beneficiary will perform the high-level responsibilities set forth in the statutory definition at 
section 10l(a)(44)(A)(i)-(iv) of the Act. If the record does not establish that the offered position meets 
all four of these elements, we cannot conclude that it is a qualifying managerial position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must 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). In determining whether a given 
beneficiary's duties will be primarily managerial, we consider the Petitioner's description of the job 
duties, the company's organizational structure, the duties of a 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 a beneficiary's actual 
duties and role in a business. 
The Petitioner must provide a job description that clearly describes 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, its staffing levels, and its organizational structure. 
A. Supporting Evidence 
The petition form states that the Petitioner was established in 2008 and claimed four employees in 
December 2019, when this petition was filed. The Petitioner's supporting evidence included an 
organizational chart which showed the Beneficiary's proposed position as CEO at the top of the 
hierarchy and depicted the company's president as the Beneficiary's only direct subordinate, who is 
shown as overseeing eight positions of which four positions (office administrator, a technical projects 
manager, and a senior technician) were accompanied by names of individuals claimed to occupy their 
respective positions. The chart also named the proposed vice president of sales and marketing and 
listed five positions (presale design engineer, sales representative, vice president of engineering, 
2 
software/electrical engineer, and service/project technician) as "currently open," thereby indicating 
that neither the individual who was proposed for the position of vice president of sales and marketing 
nor the five "currently open" positions represented positions that were part of the organization at the 
time of filing. 
The Petitioner also provided a company overview in which it stated that at the end of 2018, its board 
of directors decided to "aggressively grow" its business through focused marketing efforts in Canada 
and North and South America. The Petitioner stated that it would be responsible for establishing direct 
marketing channels, managing the servicing of equipment, "some manufacturing," and assisting with 
project installations in the United States and Canada, while the claimed foreign affiliate would market 
products in Africa and Europe and provide support services, including design and manufacture of 
equipment, research and development of new products, and after-sales services to customers. 
The Petitioner also provided the following list of the Beneficiary's proposed job duties: 
• Determine and formulate policies and provide overall direction of business operations; 
• Plan, direct, and coordinate operational activities through subordinate executives and 
managers; 
• Plan and direct finances and budgets; 
• Hire and fire managers and technical department heads; 
• Evaluate business performance to ensure continued operations and maximum profits; 
• Consult board members regarding the integration of internal operations; 
• Oversee business planning and expansion; and 
• Coordinate new product development and manufacturing for the U.S. market. 
In a request for evidence (RFE), the Director observed that the Petitioner did not adequately describe 
the Beneficiary's proposed job duties or provide sufficient information about the personnel the 
Beneficiary would manage. Accordingly, the Director instructed the Petitioner to provide evidence 
addressing these deficiencies, including a detailed job description listing the Beneficiary's typical 
managerial job duties, the frequency with which those duties would be performed, and an 
organizational chart that depicts the Petitioner's staffing hierarchy and includes employee position 
titles and job descriptions. The Director noted that the record should demonstrate that the Petitioner 
has the organizational structure to support the Beneficiary in a managerial position. 
In response, the Petitioner stated that the Beneficiary would be employed in a managerial capacity and 
have "complete managerial control" over the U.S. entity's operations by coordinating manufacturing 
with the claimed foreign affiliate, managing the departments that comprise the organization, having 
hiring and firing authority, and planning and directing activities through subordinate managers 
working in the United States and South Africa. The Petitioner also provided a job duty breakdown 
stating that the Beneficiary would allocate his time to overseeing finances, directing and coordinating 
the design and production of new products and services in the North American market, coordinating 
the expansion of sales and marketing in North America, overseeing the foreign entity's administrative 
and financial operations, and making "key managerial and executive decisions" regarding business 
strategy, risk management, product development, marketing, and administrative oversight. 
3 
In addition, the Petitioner provided the foreign entity's organizational chart, depicting the Beneficiary 
at the top of the organization as the "CEO," and foreign tax returns for employees depicted in 
management positions within the foreign organization. 
The Director concluded that the Petitioner did not demonstrate that the Beneficiary would be employed 
in a managerial or executive capacity, finding that the record lacks sufficient evidence showing whom 
the Petitioner currently employs and that the respective credentials and job duties of the Beneficiary's 
prospective subordinates' will support the Beneficiary in a managerial or executive position. 
On appeal, the Petitioner states that although the Beneficiary plans to hire additional staff, the Director 
should not have focused on the size of the Petitioner's staff and, instead, should have taken into 
account the reasonable needs of the organization "as a whole." The Petitioner also cites Matter of Z­
A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016), to support the contention that the Director 
should have considered the Beneficiary's "managerial functions" within the context of the "wider 
'qualifying organization,"' which includes the Petitioner and its claimed foreign affiliate. 
B. Analysis 
In this instance, the Petitioner has not provided sufficient evidence demonstrating that the Beneficiary 
will be employed in a managerial capacity or, more specifically, that he would manage an essential 
function, as the Petitioner now claims on appeal. 
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. Personnel managers are required to 
primarily supervise and control the work of other supervisory, professional, or managerial employees. 
Section 10l(a)(44)(A)(ii) of the Act. If a beneficiary directly supervises other employees, the 
beneficiary must also have the authority to hire and fire those employees, or recommend those actions, 
and take other personnel actions. 8 C.F.R. § 214.2(1)(l)(ii)(B)(3). 
On the other hand, the term "function manager" applies generally when a beneficiary does not 
primarily 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. 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 "(l) 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 of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
In the present matter, the Petitioner claims that the Beneficiary will be responsible for "managing and 
directing [its] activities to increase the sales" of products that are manufactured by its claimed foreign 
affiliate. The Petitioner also states that the Beneficiary "will continue to direct and coordinate the 
affiliate company's engineering and manufacturing activities through subordinate overseas 
personnel." The Petitioner's broad reference to "activities to increase sales" and "engineering and 
manufacturing activities" cannot be deemed an adequate articulation of a clearly defined activity. It 
4 
is also unclear how managing activities for the foreign entity through the foreign entity's personnel 
demonstrates that the Beneficiary will perform services for the Petitioner, as opposed to its claimed 
foreign affiliate. As the Petitioner has not identified a clearly defined activity that the Beneficiary 
would manage within the U.S. organization, it has not demonstrated that the Beneficiary meets the 
first prong of the criteria set forth above. In addition, the Petitioner's failure to specifically identify 
an essential function or establish that the Beneficiary would manage a function that is core to the 
organization precludes the conclusion that the Beneficiary will assume the role of a function manager, 
as claimed on appeal. 
Further, the Petitioner's organizational chart lists four existing positions - a president, an office 
administrator, a technical projects manager, and a senior technician - and indicates that it plans to hire 
six more employees to fill three types of engineering positions, two sales and marketing positions, and 
one position for a service/project technician. Given that these six positions were vacant at the time of 
filing, it is not clear that the Petitioner would be able to distribute its workload among its four-person 
staff without involving the Beneficiary in its operational tasks at the time of filing. 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 o_fChurch Scientology Int'!, 19 I&N Dec. 593,604 (Comm'r 1988). 
As noted earlier, the Petitioner also cites Matter o_f Z-A-, Inc. in support of the contention that we must 
consider the personnel of its claimed foreign affiliate as part of the "wider 'qualifying organization."' 
However, as stated in the cited decision, the burden is on the petitioner to submit probative evidence 
establishing its reasonable staffing needs and explaining how those needs are material to the 
beneficiary's managerial position. Id. at 5. In this instance, the Petitioner provided an organizational 
chart that does not include any of the foreign entity's personnel, but rather indicates that at the time of 
filing, the Petitioner had staffing deficiencies that it intended to address by hiring the six additional 
employees listed above. The Petitioner does not explain how the foreign personnel would relieve the 
Beneficiary from having to perform primarily non-managerial, albeit critical, job duties, particularly 
marketing and selling the Petitioner's products in the United States to achieve the Petitioner's 
endeavor of expanding into the U.S. market. 
In sum, the record contains evidentiary deficiencies that cause us to question whether the Beneficiary 
would manage an essential function and whether the Petitioner's staffing at the time of filing would 
adequately support the Beneficiary in a function manager position by relieving him from having to 
allocate his time to primarily non-managerial the job duties. As such, we cannot conclude that the 
Beneficiary would be employed in a managerial capacity. 
III. QUALIFYING RELATIONSHIP 
In addition, although not discussed in the Director's decision, the record indicates that the Petitioner 
does not have a qualifying relationship with the Beneficiary's foreign employer. To establish a 
"qualifying relationship," the Petitioner must show that the Beneficiary's foreign employer and the 
proposed U.S. employer are the same employer (i.e. one entity with "branch" offices), or that they are 
related as a "parent and subsidiary" or as "affiliates." See section 101 (a)( 15)(L) of the Act; see also 
5 
8 C.F.R. § 214.2(1)(1)(ii) (providing definitions of the terms "parent," "branch," "subsidiary," and 
"affiliate"). 
In the petition form, where instructed to disclose how the Petitioner is related to the Beneficiary's 
foreign employer, the Petitioner marked an "x" next to the box for "affiliate." The term "affiliate" 
applies when two entities are owned and controlled by the same parent or individual or by the same 
group of individuals, with each individual owning approximately the same share or proportion of each 
entity. See 8 C.F.R. § 214.2(1)(1)(L). 
In support of the petition, the Petitioner provided ownership breakdowns listing the owners of the U.S. 
and foreign entities. The Petitioner's ownership breakdown shows that it is owned by two trusts 
I I and I land two individuals I land I ~- Each trust is shown 
as owning 30% of the Petitioner's stock, whilel I andl ~re shown as owning 
25% and 15% of the Petitioner's stock, respectively. 
The foreign entity's ownership breakdown shows that it is owned by the Petitioner and three trusts 
I I I I an~ ~ with each of the four parties owning 25% of the foreign 
entity. The Petitioner provided supporting evidence in the form of stock certificates and its own stock 
transfer lei ger, all i°f which support these ownership breakdowns and indicate that only two of four 
owners - andl I- are common to the Petitioner and the Beneficiary's foreign 
employer. 
In light of the above, the evidence does not show that the companies are affiliates as they are not 
owned and controlled by the same group of owners. Although the Petitioner was asked to address this 
evidentiary deficiency in the RFE, it did not provide additional evidence, but rather offered an 
explanation stating that in addition to the Petitioner's ownership of 25% of the foreign entity, both 
entities are commonly owned by the I I and I I which together own 60% of the 
Petitioner and 50% of the foreign entity. The Petitioner did not establish that its 25% ownership of 
the foreign entity gives rise to an affiliate relationship between the Petitioner and the Beneficiary's 
foreign employer. 
As stated earlier, in order to establish an affiliate relationship in the context of an ownership scheme 
that involves multiple owners and no single majority shareholder, it must be demonstrated that the 
claimed affiliates are owned by the same group of individuals and that each individual owns 
approximately the same share or proportion of each entity. See id. That is not true of the Petitioner 
and the Beneficiary's foreign employer, whose respective ownership schemes include only two owners 
that are common to both entities. The fact that the combined ownerships ofl I and I I 
result in a majority ownership interest - 60% in the Petitioner and 50% in the foreign entity - does not 
satisfy the language in the regulations. 
Furthermore, there are inconsistencies in the record with respect to the Petitioner's ownership. 
Information in the Petitioner's 2018 tax return conflicts with information in the Petitioner's stock 
ledger and stock certificates and evidence submitted with thle petTon. Namely, Schedule G of the tax 
return shows that each of three trusts c=J I l and own 30% of the Petitioner's stock, 
6 
respectively, and Schedule E of the same tax return namesl l'3 as owner of the remaining 
10% of the Petitioner's stock. The stock ledger and stock certificates do not include I las an 
owner and lis~ I as owner of 15% of the Petitioner's stock and I I as owner of 
25% of the Petitioner's stock, rather than 10%, as indicated in the tax return. The Petitioner must 
resolve these inconsistencies in the record with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In light of the deficiencies described above, the Petitioner has not established that it and the 
Beneficiary's foreign employer meet the regulatory definition of "affiliate," as claimed. Therefore, 
we cannot conclude that the Petitioner had a qualifying relationship with the Beneficiary's foreign 
employer at the time this petition was filed. For this additional reason, the petition cannot be approved. 
ORDER: The appeal will be dismissed. 
3 It is noted for the record that this spelling is inconsistent with the other submitted ownership documents. 
7