dismissed L-1A Case: Food Distribution

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-D- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 19. 2017 
PETITION: FORM 1-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. a food products distribution company. seeks to temporarily employ the Beneficiary as 
the general manager of its new office 1 under the L-1 A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section IOI(a)(15)(L). 8 U.S.C. 
§ IIOI(a)(l5)(L). The L-lA classification allows a corporation or other legal entity (including its 
at1iliate 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 Petitioner did 
not establish. as required. that: ( 1) the new otlice would support a managerial or executive position 
within one year of approval of the petition: and (2) the Beneficiary had at least one year of full-time 
continuous employment abroad in a managerial or executive capacity in the three years preceding the 
filing of the petition. 
On appeaL the Petitioner submits additional evidence of the Beneficiary's foreign employment and 
asserts that he has been employed by its foreign parent company. and will be employed in the United 
States. in a managerial or executive capacity. 
Upon de nom review. we withdraw the Director's adverse finding regarding the Bcneficiary"s 
employment abroad. 2 However. as the Petitioner did not overcome the remaining ground for deniaL 
we will dismiss the appeal. 
1 
The term ··new oftice" refers to an organization which has been doing business in the United States 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 no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
2 The record now contains documentation of the Beneticiary's full-time employment with the Petitioner's parent 
company dating back to January 2014. While the Beneficiary was in the United States in F-1 status for the year 
immediately preceding the tiling of the petition. he has the required one year of employment abroad in the three ;ears 
preceding the filing ofthe petition in January 2017. See 8 C.F.R. ~ 214.2(1)(3)(iii). Further. the Petitioner demonstrated 
that the Beneficiary. as general manager in a firm with 22 employees. supervised subordinate professionals. managers 
and supervisors. and more likely than not performed primarily managerial duties consistent with the definition of 
""managerial capacity·· at section IOI(a)(44)(A) ofthe Act. 
A1atter olP-D- Inc. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification lor a new office. 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. 8 C.F.R. § 214.2(1)(3)(v)(B). 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. Section 10l(a)(15)(L) of the 
Act. The petitioner must also establish that the beneficiary's prior education. training. and 
employment qualities him or her to perform the intended services in the United States. 8 C.F.R. 
§ 214.2(1)(3). 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured suHicient physical premises to house its operation and disclose the proposed nature and 
scope of the entity. its organizational structure. its financial goals. and the size of the U.S. 
investment. S'ee :;;enerally. 8 C.F.R. § 214.2(1)(3)(v). 
··Managerial capacity .. means as an assignment within an organization m 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 \Vhich the employee has authority. Section 
101(a)(44)(A) ofthe Act. 
··Executive capacity"" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization: 
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 
101(a)(44)(B) ofthe Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director determined that the Petitioner did not establish that its new of1ice \>v·ould be able to 
support a managerial or executive position within one year of approval of the petition. 
Specifically. the Director determined that the Petitioner did not demonstrate that the Beneficiary 
would supervise a subordinate staff of managerial. supervisory. or professional employees within 
one year. or that the projected subordinate stafTwould perform certain non-qualifying duties. such as 
delivering products to customers. Further. the Director noted that the Petitioner revised its financial 
projections in the response to a request tor evidence (RFE) without explaining the reasons for the 
2 
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.tvfaller ofP-D- inc. 
changes, thus making it di fticult to determine the compan:y" s financial goals and objectives for the 
tirst year of operations. Accordingly. the Director concluded that the evidence was insutlicicnt to 
establish that the nev,· oflice would support a qualifying executive or managerial position within one 
year. 
On appeal. the Petitioner asserts that it satisfied all requirements for an L-1 A new office petition. 
The Petitioner maintain s that the Director misinterpreted the projected revenue tigures in its business 
plan and reiterates that it anticipates total sales of over$ t. t million during its initial year. 
A. Business Plan and Projected Staning 
In the case of a new office petition. beyond the description of a beneficiary's proposed job duties. we 
review the petitioner's business and hiring plans and evidence that the business will grow 
sufficiently to support a beneticiary in the intended managerial or executive capacity. A petitioner 
has the burden to establish that it would realistically develop to the point \vhere it would require the 
beneficiary to perform duties that are primarily managerial or executive in nature within one year. 
Accordingly, the totality of the evidence must be considered in analyzing \vhether the proposed 
managerial or executive position is plausible considering a petitioner 's anticipated staffing levels and 
stage of development within a one-year period. See 8 C.F.R. § 214.2(1)(3 )(v)(C). 
The Petitioner submitted a business plan indicating that it plans to operate as a distributor for 
Brazilian food brands in North Florida, Alabama. and Georgia.' The Petitioner indicated that it "has 
a deal with four companies'" and identified the brands it will distribute as · fruit 
snacks. 1 • frozen fi'uit bars. ' coffee. and • snacks. 
Although the Petitioner claims that it has agreements in place with all four brands. it submitted only 
one product distribution agreement, which authorized the Petitioner to sell products in 
nine Florida counties. 
The Petitioner's projected first year revenues of $1.1 million 4 are contingent upon its sales of these 
four brands in several states. therefore it is reasonable to expect corroborating evidence of the 
distribution agreements . Without this evidence. we cannot determine whether the Petitioner· s 
projections are realistic. The record supports that the Petitioner is prepared to sell one brand of 
products 1 'in a limited geographic area in Florida. 
The Petitioner has consistently stated that it will hire six full-time employees. not including the 
Beneficiary, during its initial year. with all positions filled by the fourth month of operations. The 
subordinate positions include a sales manager, three sales representatives. a vvarehouse specialist, 
and an administrative assistant. \Vith the sales manager depicted as a supervisor on the Petitioner's 
The business plan, in some instances. identifies the Petitioner's targeted mnrkets as Florida, Georgia. and 
Massachusetts. 
~The Petitioner has provided consistent revenue projections for its initial year throughout this proceeding. The Director 
detennined that the Petitioner revised these projections in response to an RFE. but appears to have misinterpreted the 
financial information submitted included in the RFE response. 
J'V!atter ofP-D- Inc. 
proposed organizational chart. The Petitioner submitted three different sets of job descriptions for 
the subordinates, which makes it difficult to determine the nature of these positions. For example. 
one version of the administrative assistant job description indicates that this employee will be 
recruiting, selecting. disciplining. and training employees. and performing accounting tasks. while 
another description limits the role to clerical duties and ordering office supplies. One version of the 
sales representative job description refers to seeking out ··customers in store'" but the Petitioner docs 
not intend to operate a store. Further. despite the placement of the sales manager on the 
organizational chart. the Petitioner did not consistently indicate that this position would manage or 
supervise the lower-level sales statT. 
In addition, as noted. the record does not establish whether the Petitioner's sales projections are 
reasonable given its submission of only one product distribution agreement. While it may be 
feasible to pay the projected $250,000 in salaries with revenues of over $1.1 million, it is unclear 
that the Petitioner would be able to achieve those revenues absent corroborating evidence that it has 
four distribution agreements in place. Therefore, the lack of evidence in this regard calls into 
question the Petitioner's ability to hire and compensate six full-time workers. and its ability to hire 
sufficient staff to relieve the Beneficiary from significant involvement in non-qualifying duties 
within one year. 
The statutory definition of ''managerial capacity"" allows for both "personnel managers'" and 
''function managers.'" See section I 01 (a)( 44 )(A)(i)-(ii) of the Act. Personnel managers arc required 
to primarily supervise and control the work of other supervisory. professional, or managerial 
employees. 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) of the Act. If a petitioner claims that a 
beneficiary directly supervises other employees, those subordinate employees must be supervisory. 
professional, or managerial, and the beneficiary must have the authority to hire and fire those 
employees. or recommend those actions. and take other personnel actions. Section 
101(a)(44)(A)(ii)-(iii) ofthe Act. 
In evaluating whether a beneficiary manages professional employees. vve must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. Cl 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""). Section I 01 (a)(32) of the Act states that "'[t]he term profession shall include but not 
be limited to architects. engineers, lawyers. physicians, surgeons. and teachers in elementary or 
secondary schools, colleges. academies, or seminaries.'" Therefore. we must focus on the level of 
education required by the position, rather than the degree held by a subordinate employee. 
The Petitioner initially stated that only the sales manager position would require a bachelor's degree. 
but in response to the RFE, it referred to all subordinate positions as "professionals'" without further 
explanation. As noted. the record does not include a consistent explanation of the sales manager"s 
proposed duties sufficient to establish that the position vvould be supervisory or that it would require 
an individual with a bachelor's degree. In addition. without evidence to support the Petitioner's 
4 
A1alter of P-D- Inc. 
claim that it is prepared to commence distribution of four different brands in at least three states. it is 
unclear that it \Vould have the sales volume to \Varrant the hiring of four full-time sales staiT. 
Due to inconsistencies in the subordinate employee's job descriptions and the omission of evidence 
related to the company's distribution agreements. the record does not demonstrate that the 
Beneficiary would be primarily engaged in supervising subordinate managers. supervisors. or 
professionals within one year. 
Further. as noted by the Director. the Petitioner has not identified. for example. an employee \vho 
would be responsible for driving the delivery truck depicted in the submitted photographs. The 
Petitioner also does not have a position for a bookkeeper or accountant. The Petitioner indicate that 
the Beneficiary will spend a substantial portion of his time managing a ··purchase manager" but has 
not otherwise identified a proposed position \Vith this title or an employee responsible for purchasing 
or procuring the goods the Petitioner will sell. A company's size alone may not he the determining 
factor in denying an L-1 A visa petition without taking into account the reasonable needs of the 
organization. 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 \Vith other relevant factors. such as the 
absence of employees \vho would perform the non-managerial or non-executive operations of the 
company. Family Inc. v. USCIS. 469 F.3d 1313 (9th Cir. 2006): S)·stronics Corp. 1·. Jlv'S. 153 
F. Supp. 2d 7, 15 (D.D.C. 2001). Here, there are several non-managerial functions that are not 
accounted for in the projected hiring plan. 
As discussed further below. the Petitioner's description of the Beneficiary" s duties. considered in 
light of the statling and business plans. does not establish that he would perform primarily 
managerial or executive duties within one year. Even though the Beneficiary \Vould hold a senior 
position within the organization. the fact that the Beneficiary will manage a business and supervise 
subordinate employees does not necessarily establish eligibility for classification as an intracompany 
transferee in a managerial or executive capacity. By statute. eligibility for this classification requires 
that the duties of a position be ··primarily" managerial or executive in nature. Sections 
10l(A)(44)(A) and (B) ofthe Act. 
B. Duties 
At the time of filing. the Petitioner described the Beneficiary's proposed duties at the end of the first 
year of operations as follows: 
• Manage and supervise the \vork of the Sales Manager. Purchase .'vfanager, and 
other professionals: (up to 30%) 
• Manage general activities related to making products and providing services; (up 
to 20%) 
• Establishes sales strategies and marketing goals. evaluating performance of the 
company and its staff and determines areas of cost reduction and program 
improvement; (up to 10%) 
!lfatter ofP-D- Inc. 
• Supervise the implementation of the corporation's accounting practices and 
financial policies, analyzing reports, audits, deciding investment risks, budget, 
allocation of resources: (up to 20%) 
• Hire and supervise the training of professionals to work in the company: (up to 
15%) 
• Supervise the Sales Manager and Purchase Manager in analyzing sales 
information, such as price, future trends, and investment risks, making investment 
decisions, estimating forecast of business and preparing plans of action. (up to 
5%) 
As noted, the Petitioner does not otherwise indicate that it plans to hire a purchase manager and it is 
unclear who would actually perform the duties normally associated with this position. The 
Petitioner also does not have subordinate staiT to implement the accounting and financial activities 
the Beneficiary is claimed to oversee. Beyond these unexplained references to non-existent 
subordinates, the description is very general and provides little insight into what the Beneficiary 
would actually be doing in order to ··manage general activities" and establish goals and policies. 
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 1'. Sava, 724 F. Supp. II 03, 1108 (E.D.N. Y. 
1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Another position description for the Beneficiary appears in the Petitioner's business plan and bears 
little resemblance to the one referenced above. This description indicates that the Beneficiary is 
responsible for market analysis, building the company image, maintaining quality service, 
contributing to ··team effort" by ··accomplishing related results," expansion and branding plans, and 
establishing ··procurement, production, marketing, field, and technical services policies. This 
description also places much less emphasis on supervising subordinates, an activity that accounts 
for 50% of the Beneficiary's time in the initial job description above. The Petitioner did not 
provide an explanation for the two different descriptions. 
The Petitioner has conveyed the Beneficiary's discretionary authority to set up the company and 
establishes its policies and strategies, but has not offered a clear or consistent description of what it 
expects him to do on a day-to-day basis by the end of the first year of operations. Even though the 
evidence indicates that the Beneficiary will occupy the senior position in the new office, the 
Petitioner has not submitted a job description or supporting evidence sufficient to demonstrate that 
he would primarily engage in managerial or executive duties, or that the new office would support a 
managerial or executive position, after the initial year of operations. 
Matter ofP-D- Inc. 
Ill. CONCLUSION 
The Petitioner has not established that it will employ the Beneficiary in a managerial or executive 
capacity within one year. 
ORDER: The appeal is dismissed. 
Cite as Matter of"P-D-lnc., ID# 698867 (AAO Dec. 19, 2017)