dismissed L-1A Case: Food Production

U.S. Citizenship 
and Immigration 
Services 
In Re: 14299849 
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. 22, 2021 
The Petitioner, describing itself as a food production company, seeks to continue 1 the Beneficiary's 
employment as its chief executive officer (CEO) in the United States under the L-lA nonimmigrant 
classification for intracompany transferees . Immigration and Nationality Act (the Act) section 
10l(a)(15)(L), 8 U.S.C. § l 101(a)(15)(L). 
The Director of the California Service Center denied the petition concluding the Petitioner did not 
establish that the Beneficiary would be employed in a managerial or executive capacity under an 
extended petition. On appeal, the Petitioner asserts the Director erred. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 2 
We review the questions in this matter de nova . 3 Upon de nova 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. 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. Id. 
A petitioner seeking to extend an L-lA petition that involved a new office 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 held; 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
1 The Petitioner previously filed a "new office" petition on the Beneficiaiy 's behalf which was approved for the period 
from April 19, 2019, to April 18, 2020. 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(l)(l)(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 of the petition to support 
an executive or managerial position. 
2 See Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015) . 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 8 C.F.R. 
§ 214.2(1)(14)(ii). 
II. ANALYSIS 
The central issue here is whether the Petitioner established that the Beneficiary will be employed in a 
qualifying "managerial capacity" as defined in the Act and the Department of Homeland Security 
regulations under an extended petition. 4 Section 10l(a)(44)(A) of the Act; 8 C.F.R. 
§ 214.2(l)(l)(ii)(B). 
"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. 
When examining the managerial capacity of a given beneficiary, we 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 are in a managerial or executive 
capacity. See 8 C.F.R. § 214.2(1)(3)(ii). 
A. Duties 
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 101(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. 
4 Although the Petitioner identifies the proffered position as the chief executive officer, it contends that the Beneficiary's 
duties are in a managerial capacity. Accordingly, we limit our review of the proposed position to the elements necessary 
to establish managerial capacity. 
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In response to the Director's request for evidence (RFE), the Petitioner provided a list of duties, the 
time allocated to those duties, and how the duties were accomplished. The Petitioner indicated that 
the Beneficiary had been performing these duties and that she would continue to carry out the duties 
under the extended petition. The Petitioner stated that the Beneficiary will spend 25 percent of her 
time ensuring the marketing plan is updated, purchasing merchandising material, hiring personnel, 
working on trade shows, being responsible for checking social media, website, and return on online 
investment, and measuring return over marketing investment. These duties depict an individual 
performing the operational tasks of marketing personnel. The Petitioner claims that the Beneficiary 
will accomplish these tasks in coordination with the marketing coordinator, marketing specialist, 
social media specialist, SEO and website specialist, and graphic designer. As will be discussed in 
more detail below, the record does not include evidence that the Petitioner employed personnel in 
these positions when the petition was filed. 5 Thus, it appears that the Beneficiary is and will be 
responsible for performing these operational tasks. 
The Petitioner also stated that the Beneficiary will spend 20 percent of her time "[ c ]hecking and 
planning cashflow needs, accountable for payables and receivables, and bookkeeping" and that these 
tasks will be accomplished in coordination with the chief operating officer (COO) and Brazil staff 
The balance sheet as of June 19, 2020 and the cash flow statement ending May 31, 2020 are both 
signed by the Beneficiary, but the record does not include evidence establishing who prepared these 
documents. The record also does not corroborate that the Petitioner employed a COO when the 
petition was filed. 6 The record does not include evidence that the Brazilian staff have knowledge of 
or perform duties related to the Petitioner's payables, receivables, or bookkeeping. 7 Thus, it appears 
the Beneficiary as the sole employee is and will continue to perform these administrative tasks. 
Similarly, the Petitioner stated that the Beneficiary will spend 15 percent of her time on product pricing 
and expenses reports in coordination with the COO and sales manager. Again, these individuals were 
not on the Petitioner's payroll when the petition was filed according to the evidence submitted for the 
record. 
The duties referenced above, as well as the remaining tasks in the Petitioner's description of duties, 
are not sufficiently detailed to conclude that the Beneficiary's duties will be primarily managerial in 
nature. 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 10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated 
5 The record shows that the Petitioner previously employed some individuals in these positions, however. the record does 
not include evidence that any of these individuals were employed when the petition was filed in April 2020, or that any 
employees were in these positions when the Petitioner filed the appeal in September 2020. Rather the Petitioner 
acknowledged that it terminated the employment of U.S. staff in April 2020 due to the pandemic and that the Beneficiary 
no longer oversees these employees. 
6 On appeal, the Petitioner indicates that this individual was in the United States on a nonimmigrant visa valid to April 28, 
2020, and that he worked in the U.S. for the Petitioner until April 28, 2020. We note that this individual's last paycheck 
is dated March 20, 2020. Thus, it is not evident that he worked the ten days subsequent to the date the petition was filed 
and before he left the United States. Although the record includes one document, a brokers contract agreement, signed by 
the COO approximately one month after the petition was filed, this is insufficient to establish how this individual performed 
or would perform duties on behalf of the Petitioner subsequent to his return to Brazil. The record does not demonstrate 
that this individual relieved the Beneficiary from performing operational duties. 
7 Although the description of the Brazilian finance manager's duties indicates that she is involved in cash flow planning, 
the description is not sufficiently detailed to correlate this task to cash flow planning for the Petitioner. 
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managerial or executive duties); Matter o_f Church Scientology Int'l, 19 I&N Dec. 593,604 (Comm'r 
1988). The record also does not include sufficient documentation to substantiate the Beneficiary will 
perform managerial-level duties and delegate duties to the claimed subordinates. The description of 
tasks is not sufficiently informative to conclude that the Beneficiary is supervising and controlling the 
work of other employees. Specifics are clearly an important indication of whether a beneficiary's 
duties are primarily managerial in nature, otherwise meeting the definitions would simply be a matter 
ofreiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
aff'd, 905 F.2d41 (2d. Cir. 1990). 
Although the Petitioner asserted that "[a]t the time of filing the L-lA extension, [the Beneficiary] had 
significant personnel management duties, as she is the most senior-level personnel [sic] in the United 
States," the record does not corroborate this assertion. Even if the Beneficiary will manage the 
business this does not necessarily establish eligibility for classification as an intracompany transferee 
in a managerial capacity within the meaning of section 10l(a)(44) of the Act. Again, by statute, 
eligibility for this classification requires that the duties of a position be "primarily" managerial in 
nature. Sections 10l(A)(44)(A) of the Act. 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 position description alone is insufficient to establish that her actual 
duties would be primarily managerial in nature. 
B. Staffing 
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 must take into account the reasonable 
needs of the organization, in light of the overall purpose and stage of development of the organization. 
Section 10l(a)(44)(C) of the Act. Again, as discussed, the Petitioner must demonstrate that the 
Beneficiary was eligible for the benefit sought as of the date the petition was filed on April 18, 2020 
and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). As such, we look to the Petitioner's 
staffing and organizational structure beginning in April 2020. 
On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner stated it had O employees in 
the United States. 8 This conflicts with the Petitioner's initial organizational chart, as well as the 
Petitioner's organizational chart provided in response to the Director's RFE. The Petitioner's 
statement in response to the RFE that it "had to let go of our staff in the U.S." and had to cancel 
scheduled trade shows, due to an April 3, 2020 government order, strongly suggests that the Petitioner 
did not have U.S. employees subordinate to the Beneficiary when the petition was filed on April 18, 
2020. This is supported by the statement on the Form I-129, regarding the number of employees in 
the United States, as well as the lack of evidence of payroll paid at the time the petition was filed. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10l(a)(44)(A) of the Act. 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 
8 It is unclear why the Petitioner claimed O employees, if it intended to employ the Beneficiary in the United States, as she 
should have been counted as one employee. 
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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." Id. 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)(1)(ii)(B)(3). 
On appeal, the Petitioner asserts that the Beneficiary performs her duties in coordination with the 
Brazilian team and refers to its international organization chart. This organizational chart depicts the 
Beneficiary as CEO over the operations manager, the individual formerly in the position of the 
Petitioner's COO, who in tum is over a number of Brazilian employees and their subordinates. The 
Petitioner indicates as an example that the Beneficiary, who spends 10 percent of her time overseeing 
international logistics, supply documentation for FDA inspections, and keeping records for recalls, 
etc., works with the foreign production manager in performing this task. However, the record does 
not include evidence of how the Beneficiary accomplishes this oversight. It is not clear from the 
description of duties that the Beneficiary will supervise and control the Brazilian employees' tasks. 
As discussed, the Petitioner's description of duties is insufficiently detailed to understand the 
Beneficiary's role within the U.S. organization and that the actual duties are managerial functions and 
not primarily administrative and operational tasks. 
The Petitioner also refers to the COO as responsible for overseeing the daily operations of the 
company, however, the COO is not in the United States performing this task, but rather is the 
operations manager in Brazil over the Brazilian team. Further, the Petitioner has not sufficiently 
corroborated how the Beneficiary supervises or delegates duties to this individual or other subordinates 
in Brazil to satisfactorily establish that the Beneficiary is primarily a personnel manager. 9 From the 
limited and inconsistent information in the record regarding the Petitioner's organizational make-up 
when the petition was filed, it is not possible to conclude that the Beneficiary's position is primarily a 
personnel manager. 
On appeal, the Petitioner asserts that as recognized in Matter of Z-A-, Inc., Adopted Decision 2016-02 
(AAO Apr. 14, 2016), personnel employed by a related entity may be considered in the analysis of 
whether the Beneficiary is relieved from performing day-to-day non-managerial tasks. In this matter, 
however, the Petitioner does not provide sufficient evidence to establish that the individuals on the 
foreign team relieve the Beneficiary from performing the basic operational and administrative tasks 
necessary to continue the operations of the Petitioner. As discussed, the Petitioner does not provide 
sufficient evidence establishing who performs duties relating to marketing in the U.S., who discusses 
sales with potential customers or sales brokers in the U.S., and who performs the routine day-to-day 
operational and administrative tasks of the business. The Petitioner has not demonstrated that the 
Beneficiary will primarily manage as opposed to perform the operational and administrative tasks of 
the organization. 
We also note that Matter of Z-A-, Inc. was decided within the context of a function manager. In this 
matter, the Petitioner does not claim that the Beneficiary will be a function manager and has not 
articulated a specific function that the Beneficiary will manage. The term "function manager" applies 
9 Without evidence that the Beneficiary primarily supervises or manages subordinates, it is unnecessary to ascertain 
whether the claimed subordinates in Brazil qualify as supervisors, managers, or professionals. 
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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 
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 "(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 this matter, the Petitioner neither identifies an essential function with specificity nor 
establishes that the Beneficiary manages this function, rather than performing the duties associated 
with running the Petitioner's daily business operations. 
As we have discussed, the Petitioner provides a general duty description for the Beneficiary that does 
not sufficiently demonstrate she would devote her time primarily to managerial duties during the 
extension of the petition. The record includes little supporting documentation to substantiate the 
Beneficiary's performance of primarily qualifying managerial-level duties. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary would be employed 
in a managerial capacity under an extended petition. 
ORDER: The appeal is dismissed. 
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