dismissed L-1A Case: Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-E- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 25, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an export company, seeks to continue the Beneficiary's temporary employment as its 
manager under the L-lA nonimmigrant classification for intracompany transferees.
1 
See 
Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The 
L-1 A 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 will be employed in a managerial or executive capacity 
under the extended petition. 
On appeal, the Petitioner asserts that the Beneficiary will continue to perform executive duties for 
the company and that it has sufficient staff to support the Beneficiary in an executive capacity. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity for one continuous year within 
three years preceding the beneficiary's application for admission into the United States. 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 s~bsidiary or affiliate thereof in a managerial or executive 
capacity. Section 1 0 1 (a )(15)(L) of the Act. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
November I, 2015, until October 31, 2016. A "new office" is an organization that has been doing business in the United 
States through a parent, branch, affiliate, or subsidiary for less than one year. 8 C.F.R. § 214.2(1)(1 )(ii)(F). The 
regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation one year within the date of approval ofthe 
petition to support an executive or managerial position. 
Matter of F-E- LLC 
The Act defines the term "executive capacity" as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function 
thereof; establishes the goals and policies of the organization, component, or function; exercises 
wide latitude in discretionary decision-making; and receives only general supervision or direction 
from higher-level executives, the board of directors, or stockholders of the organization. Section 
10l(a)(44)(B) ofthe Act. 
The Act defines the term "managerial capacity" as an assignment within an organization in which 
the employee primarily manages the organization or a department, subdivision, function, or 
component; supervises. and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function; if the employee directly supervises other employees, 
has the authority to take personnel actions, or if no other employee is directly supervised, functions 
at a senior-level within the organization 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. 
Additionally, a petitioner seeking to extend an L-lA new office petition must submit a statement of 
the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions ~eld; 
evidence of its financial status, evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
When examining the managerial or executive capacity of the Beneficiary, we will look first to 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 are in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of 
the job duties, we also examine the claimed managerial or executive capacity of a beneficiary, 
including the company'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. Additionally, if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, we take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of 
development ofthe organization. See section 101(a)(44)(C) ofthe Act. 
Accordingly, in analyzing the Beneficiary's employment capacity, we will consider the 
Beneficiary's job duties, along with evidence of the nature of the Petitioner's business and its 
staffing levels. 
2 
Matter of F-E- LLC 
A. Duties 
Based on the definitions of managerial and executive 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 
Beneficiary will be primarily engaged in managerial or executive 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 Petitioner stated on the Form I-129, Petition for Nonimmigrant Worker, that it currently 
employs four people. The Petitioner also provided a copy of its business plan which states that its 
mission is to provide a trading bridge between U.S. manufacturers/suppliers and the Chinese 
consumer market. The Petitioner initially indicated that the Beneficiary is responsible for launching, 
developing, and implementing the company's business plans, is in charge of daily operations, 
manages the office and directors of each department, recruits staff~ and designs and executes the 
company's international strategy. 
In response to the Director's request for evidence (RFE), the Petitioner provided the Beneficiary's 
statement regarding her past and proposed duties. The Petitioner submits the same statement on 
appeal. In the Beneficiary's statement under the heading "Establish goals and policies of the 
Company," the Beneficiary stated that she set a goal for the purchase and sales departments to 
establish cooperative relationships with about 50 boutiques, and a .goal to develop a functional 
products information system. The Beneficiary noted that the administrative department director is 
responsible for achieving the products information system goal and would report to her periodically. 
The Beneficiary added that she is responsible for planning, developing, and determining the 
Petitioner's financial direction and goals, administrative and employment policies and procedures, 
and for designing and executing the company's international strategy. The Beneficiary stated that 
she spends about 25 percent of her time performing these responsibilities. However, these general 
responsibilities do not convey an understanding of the Beneficiary's actual day-to-day duties. 
Reciting vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed descriptioq of the Beneficiary's daily job duties. The Petitioner has not 
provided the necessary detail and explanation of the Beneficiary's activities in the course of her 
daily routine. The actual duties themselves will reveal the true nature of the employment. 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 Beneficiary stated under the heading "Recruitment and Team Building" that these 
responsibilities will require 20 percent of her time and will include: "interviewing, hiring, training 
and supervising employees (particularly managerial employees); assigning and directing work, 
appraising performance, rewarding and disciplining employees, addressing complaints and resolving 
problems, and ensuring the human resources of the Company are in compliance with Company 
policy and applicable employment law." As will be discussed in the next section, the Petitioner does 
not include probative evidence that it employs subordinate managerial or supervisory employees. 
Although the Beneficiary may hire, assign and direct work, and evaluate her subordinates' 
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Matter of F-E- LLC 
performance, the record does not include sufficient detail to establish that these duties are executive 
or managerial duties as set out in the statutory definitions. 
Under the heading "Oversee and direct the Company's management and performance," the 
Beneficiary stated generally that she develops solutions to business challenges, provides leadership 
and management, and develops plans for the operational infrastructure, and represents the company 
with clients, investors, and business partners. The Beneficiary added that she oversees the 
company's core business functions and operation of each department, sets targets for the directors of 
each department to explore and select new brands and boutiques, to cooperate, negotiate with 
suppliers and retailers for pricing and shipping, to maintain and improve current cooperative 
relationships, and to keep the normal daily business operation of the company. The Beneficiary 
noted that the department directors report to her on the implementation of these objectives so that 
she may evaluate the functioning of each department and make adjustments. The Beneficiary 
indicated that she will spend approximately 25 percent of her time on these duties. The fact that the 
Beneficiary will manage or direct a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of section 101(a)(44) of the Act. By statute, eligibility for this classification requires that 
the duties of a position be "primarily" executive or managerial in nature. Sections 101(A)(44)(A) 
and (B) of the Act. Here, the Petitioner has not submitted sufficient detailed evidence of the 
Beneficiary actual role within the organization. For example, overseeing core business functions 
and setting targets for .subordinates does not include sufficient detail to establish what the 
Beneficiary actually does on a day-to-day basis and whether such duties are managerial, executive, 
or non-qualifying duties. 
The Beneficiary asserted that she will spend 15 percent of her time "Exercis[ing] wide latitude in 
discretionary decision-making," approving and making final decisions on all major actions such as, 
selecting business partners, terms and conditions of contracts, capital expenditures, purchase and 
sales plans, product development plans, financial reports, and other operation and business plans 
required by the parent company's board. Finally, the Beneficiary stated that she will spend 
approximately 15 percent of her time reporting to the parent company and working with and 
advising the parent company regarding the Petitioner's strategies. While the Beneficiary may 
exercise discretion over the Petitioner's day-to-day operations and possess the requisite level of 
authority with respect to discretionary decision-making, the general position descriptions submitted 
are insufficient to establish that her actual duties would be primarily managerial or executive in 
nature. 
B. Staffing 
The initial version of the Petitioner's organizational chart shows the Beneficiary as the manager and 
identifies one individual as the administrative and the financial departments' director, one individual 
as the purchasing department director, and one individual as a "buyer" reporting to the purchasing 
department director. The original chart shows the sale department director and two subordinate 
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Matter of F-E- LLC 
positions as vacant, as well as an additional buyer, secretary, and supplier relationship position 
vacant. The Petitioner provided broad position descriptions for each of the filled positions. 
In response to the Director's RFE, the Petitioner submitted a revised organizational chart which 
showed the purchasing department director also handling the sales department and the individual in 
the "buyer" position also handling sales, supplier relationships, and secretarial duties. The Petitioner 
also noted that it hired an additional employee in December 2016 who performed as a sales and 
purchasing account manager. However, as the Petitioner did not employ the sales and purchasing 
account manager when the petition was filed, this position will not be considered. The Petitioner 
must establish that all eligibility requirements for the immigration benefit have been satisfied from 
the time ofthe filing and continuing through adjudication. 8 C.P.R.§ 103.2(b)(l). 
The Petitioner also revised the position descriptions for the Beneficiary's subordinates to incorporate 
additional tasks. For example, the purchasing/sales director position is described as dividing his 
time equally between the two departments and performing market research, formulating purchasing 
plans and incentive policies, meeting suppliers and negotiating contracts, attending trade fairs, 
dealing with e-commerce providers, recognizing potential business opportunities, and leading the 
team members in achieving sales. The position description shows this individual will spend only 
five percent ofhis time supervising the supplier relationship and only ten percent of his time training 
and mentoring junior staff. The description of this individual's duties shows that he will primarily 
perform the duties of these departments, and will spend a limited amount of time interacting with or 
supervising junior employees. Additionally, his compensation is based, in part, on commissions 
suggesting he also will perform some sales duties. 
The financial and administrative director is charged with liaising with the accounting firm, managing 
cash flow, ensuring contract billing and the collection schedule, using accounting software, as well 
as having responsibility for the administrative aspects of the company. This individual also spends a 
limited time training and mentoring junior staff. The duties provided for this individual indicate he 
will perform primarily as the Petitioner's bookkeeper or payable/receivable clerk. The Petitioner 
does not develop his actual responsibilities for the administrative aspects of the company. 
The record shows that the Petitioner hired the individual initially identified as its "buyer" four days 
prior to filing the instant petition. In response to the Director's RFE, the Petitioner claimed that this 
individual will perform the buying and sales duties as well as maintain relationships with suppliers 
and source new suppliers. On appeal, the Petitioner asserts that as this individual performs "all the 
most basic function and activities of the Company," the Purchasing/Sales director and 
Financial/ Administrative director are "relieved from performing the non-qualifying functions of 
lower-level positions." The Petitioner's claim on appeal that one recently-hired employee will 
perform all the necessary work to operate and administer the business is not credible. Moreover, the 
Petitioner's job descriptions for the purchasing/sales director and the financial/administrative 
director (the positions it claims are on a tier above the one junior employee and a tier below the 
Beneficiary), while general in nature, include duties that show they primarily perform operational 
and administrative tasks. · 
5 
Matter of F-E- LLC 
To establish employment in an executive capacity under the statute, a beneficiary must have the 
ability to "direct the management" and "establish the goals and policies" of the organization. 
Inherent to this definition, the organization must have a subordinate level of managerial employees 
for a beneficiary to direct and the beneficiary must primarily focus on the broad goals and policies of 
the organization rather than the day-to-day operations of the enterprise. One does not qualify as an 
executive under the statute simply because one "directs" the enterprise as the sole managerial 
employee. Here, the Petitioner has not established how the positions held by the Beneficiary's 
subordinates are managerial positions. Rather, the record shows that these individuals perform the 
operational and administrative tasks necessary to continue the Petitioner's business. The record is 
deficient in establishing that the Beneficiary directs a subordinate level of managerial employees and 
will perform primarily executive duties. 
Although the Petitioner does not explicitly assert that the Beneficiary's duties are primarily 
managerial duties, we briefly note that to establish managerial capacity, the Petitioner may 
demonstrate that the Beneficiary will perform duties primarily as a personnel manager or a function 
manager. Personnel managers are required to primarily supervise and control the work of other 
supervisory, professional, or managerial employees. Contrary to the common understanding of the 
word "manager," the statute plainly states that 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." Section 101(a)(44)(A)(iv) of the Act. 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. 2 · 
The Beneficiary's descriptions of her duties and her allocation of her time to those duties do not 
demonstrate that she will primarily supervise other employees. Although the Beneficiary may very 
well be the only individual responsible for the supervision of the Petitioner's three employees, the 
Petitioner's organizational structure lacks the complexity to support the Beneficiary in a position 
higher than a first-line supervisor of non-professional employees.3 Therefore, the Beneficiary's 
2 
The Petitioner does not claim and the record does not establish that the Beneficiary will primarily manage an essential 
function. We note, for information purposes, that the term "essential function" is not defined by statute or regulation. If 
a petitioner claims that a beneficiary will manage an essential function, a petitioner must clearly describe the duties to be 
performed in managing the essential function, or more specifically, 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). Stating that the Beneficiary will oversee all business functions of the 
business is insufficient to describe a specific essential function. The record here does not include probative evidence that 
the Beneficiary manages an essential function within the company. . 
3 When evaluating whether a beneficiary manages professional employees, we evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. q: 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation"). Therefore, we focus on the level of education required by the 
position, rather than the degree held by subordinate employee. The possession of a bachelor's degree by a subordinate 
employee does not automatically lead to the conclusion that an employee is employed in a professional capacity. The 
record here does not include evidence that the Beneficiary's subordinates are employed in professional positions. 
6 
Matter of F-E- LLC 
position does not qualify as primarily managerial or executive under the statutory definitions. See 
section 101(a)(44)(A)(iv) ofthe Act. 
On appeal, the Petitioner asserts that a small company with a limited number of employees may still 
support a managerial or executive position. We recognize that U.S. Citizenship and Immigration 
Services (USCIS) must take into account the reasonable needs of the organization in light of the 
overall purpose and stage of development of the organization if staffing levels are used as a factor in 
determining whether an individual is acting in a managerial or executive capacity. See section 
101(a)(44)(C) of the Act. However, the regulations provide strict evidentiary requirements for the 
extension of a "new office" petition and require USCIS to examine the organizational structure and 
staffing levels of the Petitioner. See 8 C.F.R. § 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 
§ 214.2(1)(3)(v)(C) only allows the "new office" operation one year within the date of approval of 
. the petition to support an executive or managerial position. Here, the Petitioner has not established 
that its business has the necessary staffing to sufficiently relieve the Beneficiary from performing the 
necessary first-line supervisory duties of non-managerial, non-supervisory, and non-professional 
employees and other routine day-to-day operational tasks. Accordingly, the Petitioner is ineligible 
for an extension of its new office petition. 
The record documents that the Petitioner is doing business, but it does not contain sufficient 
probative evidence of the Beneficiary's proposed work in a managerial or executive capacity for the 
petitioning entity. A review of the record does not establish that the Beneficiary's work will be 
primarily managerial or executive in nature. The Petitioner has not overcome the Director's 
determination on this issue. 
III. CONCLUSION 
The appeal will be dismissed because the Petitioner has not established that the Beneficiary will be 
employed in a primarily managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of F-E- LLC, ID# 550590 (AAO Aug. 25, 2017)