dismissed L-1A Case: Food Import/Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-N-T- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 30, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an importer and exporter of food products, seeks to temporarily employ the Beneficiary 
as president of its new oftice 1 under the L-1 A nonimmigrant classification for intracompany 
transferees. Immigration and Nationality Act (the Act) section IOI(a)(I5)(L), 8 U.S.C. 
§ II 0 I (a)(I5)(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 California Service Center denied the petition concluding that the Petitioner did 
not establish that the Beneficiary would be employed in a managerial or executive capacity within 
one year of the petition. In addition, the Director determined that the Petitioner did not demonstrate 
that the Beneficiary was employed abroad in managerial or executive capacity. 
On appeal, the Petitioner asserts that the Director failed to acknowledge the U.S. employees it 
already hired and contends that the duties of all the proposed U.S. positions are not yet clear because 
thus tar they have not been filled. Further, the Petitioner states that the foreign duties of the 
Beneficiary demonstrate his managerial and executive capacity supervising subordinate managers 
and professionals. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification in a petition involving 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(l)(3)(v)(B). In addition, the beneficiary must 
1 
The term "new office" 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. 
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·Maller ofC-N-T- Corp. 
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. 
The petitioner must submit evidence to demonstrate that the new oflice will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient 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. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. MANAGERIAL OR EXECUTIVE CAPACITY WITH THE FOREIGN EMPLOYER 
We will first analyze whether the Petitioner established that the Beneficiary is employed abroad in a 
managerial or 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. 
The statute defines an "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 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) of the Act. 
When examining the foreign 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 perfom1ed 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 examine the foreign employer's organizational structure, the duties of a 
beneficiary's foreign subordinates, the presence of foreign employees to relieve a beneficiary from 
performing operational duties, the nature of the foreign business, and any other factors that will 
contribute to understanding a beneficiary's actual duties and role abroad. Accordingly, we will 
discuss evidence regarding the Beneficiary's job duties along with evidence of the nature of the 
foreign employer's business, its staffing levels, and its organizational structure . 
• 
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Mauer ofC-N-T- Corp. 
A. Duties 
Based on the definition of managerial and executive capacity, the Petitioner must first 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 is primarily engaged in managerial or executive duties, as opposed to ordinary 
operational activities alongside the foreign entity'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 that the Beneficiary's foreign employer is a "major player" in the Chinese food 
import and export industry. In a support letter submitted in response to the Director's request for 
evidence (RFE), the foreign employer indicated that as president the Beneficiary spends 40% of his 
time on supervising and directing "the activities of the heads of the departments of the company" 
' and another 30% on developing policies and formulating "business strategies." Further, the foreign 
employer explained that the Beneficiary devotes 20% of his time to directing the "negotiation of 
major contracts with vendors and/or distributors" and another I 0% to making "tina! decisions on 
personnel matters." 
The foreign employer also stated that the Beneficiary focuses on directing "the overall management 
and policy" of the company, noting that he spends a majority of his time on "supervising and 
directing the company's departmental and functional managers." lt indicated that the Beneficiary 
regularly meets with his subordinate managers regarding "new products, hiring of new personnel, 
and [the) resolution of administrative issues." The foreign employer further explained that the 
Beneficiary had lately been focusing on how its operations would integrate with the Petitioner to 
"expand the product line." In addition, it also indicated that the Beneficiary had recently directed his 
subordinate purchasing manager "to implement protocols such as improved workflow and 
timesaving measures." 
The Petitioner has not submitted a sufficiently detailed duty description that describes the 
Beneficiary's day-to-day managerial or executive-level duties abroad or credibly establishes that he 
devotes his time primarily to qualifying tasks. 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 .. Lid v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
The Beneficiary's duty description includes several generic duties that ·could apply to any manager 
or executive acting in any business or industry and they do not provide insight into the actual nature 
of his role abroad. In fact, the Beneficiary's duties do not mention the foreign employer's specific 
business, the import and export of food products. The Petitioner provided insufficient examples and 
little supporting documentation to demonstrate the Beneficiary's performance of qualifying duties 
abroad, such as policies or business strategies he formulated, vendor, distributor, or supplier 
contracts he negotiated, or personnel decisions he made. The foreign employer did not adequately 
detail or document administrative issues he resolved through his subordinate managers, long-term 
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Mauer ofC-N-T- Corp. 
business partnerships he developed, corrective changes he distributed to his managers, or workflow 
or timesaving measures he implemented. This lack of detail is particularly noteworthy since the 
foreign employer asserts that the Beneficiary has been acting as its president since 2007. 
In contrast, the Petitioner provides foreign employer documentation suggesting the Beneficiary's 
involvement in non-qualifying operational level duties. For instance, the Petitioner submitted 
several "sales contracts" from 20 16; however, these documents appear to be little more than order 
forms reflecting the foreign employer's purchase of goods abroad. Several of these purchase 
documents include the Beneficiary's name as a contact, suggesting that he is directly involved in 
day-to-day non-qualifying operational level duties. By comparison, we are provided with few 
specific examples and no supporting documentation reflecting the Beneficiary's delegation of non­
qualifying duties .to his subordinates. 
Whether the Beneficiary is a managerial or executive employee turns on whether the Petitioner has 
sustained its burden of proving that their duties are "primarily" managerial or executive. See 
sections 101(a)(44)(A) and (B) of the Act. Here, the Petitioner does not document what proportion 
of the Beneficiary's duties would be managerial or executive functions and what proportion would 
be non-qualifying. The Petitioner submits evidence indicating the Beneficiary's involvement in 
operational level tasks that do not fall directly under managerial or executive duties as defined in the 
statute, but does not quantify the time he spends on these duties. For this reason, we cannot 
determine whether the Beneficiary is primarily performing the duties of a manager or executive 
abroad. See JKEA US. Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Even though the Beneficiary holds a senior position within the foreign employer, the fact that he 
manages or directs the business does not necessarily establish eligibility for classification as an 
intracompany transferee in a managerial or executive capacity within the meaning of section 
IOI(a)(44) of the Act. By statute, eligibility for this classification requires that the duties of a 
foreign position be "primarily" managerial or executive in nature. Sections 101(A)(44)(B) of the 
Act. The Beneficiary may exercise discretion over the foreign employer's day-to-day operations and 
possess the requisite level of authority with respect to discretionary decision-making;. however, the 
position descriptions alone are insufficient to establish that his actual duties abroad are primarily 
managerial or executive in nature. 
B. Staffing 
The Petitioner submitted a foreign organizational chart reflecting that the Beneficiary oversees a 
chief financial officer (CFO) and purchasing, marketing, sales, and logistics/warehouse managers. 
The chart further indicated that the CFO supervises an accountant, a cashier, and a financial 
assistant. In addition, the chart showed that the purchasing manager oversees "purchasing 
specialists" and that the marketing manager oversees "marketing specialists." The chart also 
reflected that the sales manager supervises "sales representatives" and that the logistics/warehouse 
manager oversees drivers and dockworkers. In a support letter, the foreign employer stated that each 
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Mauer oJC-N-T- CoqJ. 
of the Beneficiary's managers were "responsible for overseeing between three and ten employees 
respectively." 
The Director denied the pettllon emphasizing that the Petitioner did not submit sufficient 
documentation to establish the Beneficiary's supervision of managerial subordinates. On appeal, the 
Petitioner points to the foreign employer support letter describing the Beneficiary's supervision of 
managerial subordinates holding bachelor's degrees. The Petitioner contends that the Director 
ignored the foreign employer's "multiple hierarchal layers" overseen by the Beneficiary. 
The Petitioner did not submit sufficient evidence to substantiate that the Beneficiary acts in a 
managerial or executive capacity overseeing an organization including subordinate managers and 
professionals. In the RFE, the Director requested that the Petitioner submit the names, job titles, 
duties, educations, and salaries of the employees within his immediate organizational structure. 
Although the Petitioner provided the names and titles of the Beneficiary's immediate managerial 
subordinates, it did not submit detailed descriptions of their duties, their specific education levels, or 
indicate their salaries. 
On appeal, the Petitioner emphasizes information provided in foreign employer support letters and 
its "multiple hierarchal layers" overseen by the Beneficiary. However, the foreign employer support 
letters do not adequately describe and credibly substantiate the duties of the Beneficiary's asserted 
.managerial subordinates. As noted, we examine the foreign employer's organizational structure, the 
duties of the Beneficiary's foreign subordinates, the presence of foreign employees to relieve the 
Beneficiary from performing operational duties, the nature of the foreign business, and any other 
factors that will contribute to understanding a Beneficiary's actual duties and role abroad. However, 
the Petitioner has submitted little evidence to provide a credible picture of the foreign employer's 
actual organizational structure and the Beneficiary's place therein. 
For instance, the Petitioner vaguely indicates that each of the Beneficiary's managers are 
"responsible for overseeing between three and ten employees respectively" and indicates that his 
managers supervise purchasing and marketing specialists, sales representatives, and other 
operational employees. However, it does not specify how many employees each subordinate 
manager oversees nor does it describe the duties of their asserted operational subordinates. In 
addition, submitted foreign employer financial documentation includes no indication that it pays 
wages or salaries and the Petitioner otherwise provides no supporting documentation to corroborate 
the employment of its foreign employees beyond its own statements. Further, although the 
Petitioner submits tax documentation reflecting that the Beneficiary earned a regular salary during 
2016 there is no indication from what source he received this salary or that this was paid by the 
foreign employer. 
The Petitioner also asserts that the Beneficiary supervises professional level employees, indicating 
that his subordinate managers hold bachelor's degrees. However, the Petitioner does not describe 
the degrees and education levels of the Beneficiary's subordinates, as properly requested by the 
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Director, nor does it submit duty descriptions and supporting documentation to demonstrate that his 
subordinates act in professional capacities? 
In conclusion, the Petitioner has not sufficiently described the Beneficiary's day-to-day duties 
abroad and the record includes substantial evidence indicating his involvement with non-qualifying 
operational tasks. The Petitioner has not corroborated that the Beneficiary is primarily removed 
from perfom1ing non-qualifying operational duties in his capacity abroad. In addition, the Petitioner 
has not properly substantiated that the Beneficiary supervises managers and professionals abroad as 
claimed. As such, the Petitioner has not established that the Beneficiary is employed abroad in a 
managerial or executive capacity. For these reasons, the appeal must be dismissed. 
Ill. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director also denied the petition finding the Petitioner did not establish that the Beneficiary would 
be employed in a managerial or executive capacity within one year of an approval of the petition. In 
denying the petition, the Director stated that the Petitioner did not submit proposed duty descriptions for 
the Beneficiary's projected subordinates. In its appeal, the Petitioner asserts that the Director failed to 
acknowledge already hired U.S. employees and contends that the duties of all its proposed positions 
are not yet clear because they have not yet been filled. Following a review of the evidence, we concur 
with the Director's decision that the Petitioner did not establish that the Beneficiary would be employed 
in a managerial or executive capacity in the United States within one year. 
The Petitioner stated that the Beneficiary would act as president of the new company and guide its 
"vision and growth strategy." The Petitioner indicated that the Beneficiary would establish "policies 
and objectives" of the company, "define the company's vision and formulate policies and 
procedures," "review activity reports and financial statements," "revise objectives," evaluate the 
performance of his subordinate managerial and professional subordinates, and "develop long-term 
and short-term goals and strategies." 
Similar to the Beneficiary's. asserted foreign duties, his U.S. duty description also includes several 
generic duties that could apply to any manager or executive acting in any business or industry; such 
duties do not provide insight into the actual nature of his role. The Petitioner provided few specifics 
related to how the Beneficiary's day-to-day duties tit specifically within the company's first year 
business plans. For instance, the Petitioner did not specify the actions the Beneficiary would take 
during its first year of operation to assure that it develops as necessary to support him in a 
managerial or executive capacity within one year. In fact, the Beneficiary's duty description 
2 In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 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 IOI(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." 
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Matter ofC-N-T- Corp. 
includes no mention of the company's intended business, the purchase and sale of food products. 
The Petitioner also submits few examples of vision he will set, policies and procedures he will put in 
·place, objectives he will implement, or long and short-term goals and strategies he will establish. 
Again, 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. Fe din Bros. Co .. Ltd., 724 F. Supp. II 03, II 08. 
Further, the Petitioner's tirst year business and investment plans do not adequately demonstrate that 
it is likely to support the Beneficiary in a managerial or executive capacity within one year. The 
Petitioner submits evidence indicating that the Beneficiary has invested $204,800 in the new U.S. 
venture. However, the Petitioner does not detail how this investment is sufticient, or how it will be 
used to launch the business. The Petitioner provides few details regarding specific actions it will 
take during the first year to launch the business. Likewise, ir only vaguely states that it will hire 
operations, finance, procurement, and business development/marketing managers subordinate to the 
Beneficiary during the first year. However, it does not submit detailed duty descriptions for the 
Beneficiary's proposed subordinates to demonstrate how they would relieve him, if hired, from 
primarily performing non-qualifying duties within the first year. 
Lastly, we acknowledge that the Petitioner provides state tax documentation indicating that it has 
likely hired two employees beyond the Beneticiary as of the tiling of the petition. But, this alone 
does not demonstrate that the Petitioner will develop sut1iciently during the first year to support the 
Beneficiary in a managerial or executive capacity. For these reasons, the Petitioner has not 
established that the Beneficiary would act in a managerial or executive capacity within one year. 
IV. CONCLUSION 
The appeal will be dismissed because the record does not include sufficient evidence establishing 
that the Beneficiary is employed abroad in a managerial capacity or that he would be employed in a 
managerial or executive capacity in the United States within one year of the petition's approval. 
ORDER: The appeal is dismissed. 
Cite as Maller ofC-N-T- Corp., ID# 1276417 (AAO May 30, 2018)