dismissed L-1A Case: Food Products

U.S. Citizenship 
and Immigration 
Services 
MATTER OFT-USA, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 27,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a wholesale distributor of food products, seeks to continue the Beneficiary's 
temporary employment as its operations director under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 
8 U.S.C. § 110l(a)(l5)(L). The L-lA 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, as required, that the Beneficiary would be employed in a managerial or executive 
capacity under the extended petition. 
On appeal, the Petitioner resubmits the Beneficiary's job duty breakdown and contends that the 
Beneficiary will oversee four subordinate managers, who will assign all non-managerial job duties to 
their professional subordinates. The Petitioner also provides business documents, employee pay 
stubs for 2017, and an updated organizational chart to support the claim that the Beneficiary will be 
employed in a managerial position. 
Upon de novo review, we lind that the Petitioner has not overcome the ground for denial. Therefore, 
we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A 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. 
§ 2l4.2(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. !d. 
Maller rifT-USA. Inc. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Statling 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, USC IS takes into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. See section 10 I (a)( 44)(C) of the Act. 
The Petitioner tiled the Form 1-129 on December 14, 2016 claiming nine employees. In a supporting 
letter, the Petitioner stated that the Beneficiary will have two "managerial executives" - a logistics 
director and a roasting specialist- as his direct subordinates, who would in tum oversee the work of four 
professional employees. In total, the Petitioner claimed that the Beneficiary would oversee a six-person 
staff comprised of "two senior-level managers and tour middle-level managers," and that he would 
therefore be "insulated'' !rom having to perform administrative tasks. 
The Petitioner provided job descriptions lor the logistics director and roasting specialist indicating that 
the former would manage product shipping and warehousing while the latter would locus on nut 
roasting, product crating and packaging, as well as inventory and quality control. The Petitioner also 
provided an organizational chart, which named five employees occupying the following positions: the 
company president, a quality control employee, the Beneficiary as operations director, and his two 
subordinates- a roasting specialist and a logistics director. The chart shows that the Beneficiary and the 
quality control employee are both directly subordinate to the president and occupy the same 
organizational tier within the hierarchy. Although the chart also shows that the logistics director would 
oversee a driver, no employee was named in that position. Likewise, the chart indicates that the roasting 
specialist oversees an undisclosed number of pickers, a roaster, and a maintenance employee; it does not, 
however, name any of these employees or indicate that these positions were sourced from outside the 
company as independent contractors .. The chart does not depict any administrative or sales employees 
and names only live employees in total; this information is inconsistent with the petition, which indicates 
that the Petitioner claimed nine employees at the time of tiling. 
In a request for evidence (RFE), the Petitioner was instructed to provide, in part, an organizational chart 
and quarterly wage reports tor the last three quarters in 2016 as well as the company's payroll summary, 
Fon11S W-2, W-3, and 1099 showing wages paid to all employees under the Beneficiary's control. 
In response, the Petitioner provided another organizational chart showing the Beneficiary and the quality 
control employee at the san1e organizational tier and subordinate to the company's president. Although 
the new chart again shows the Beneticiary as overseeing a roasting specialist and a logistics director, it 
does not show the latter as overseeing anyone; it also names a roasting specialist and a roaster and 
indicates that the maintenance position and pickers will be sourced from an unnamed "temp agency." As 
the chart is undated, it is unclear when this staffing structure went into eflect and whether it was in effect 
in December 2016 when this petition was filed. 
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Malter ofT-U.SA. Inc. 
The Petitioner also provided a state quarterly wage report tor the fourth quarter in 2016. The re port listed 
a total of five employees only two of which - the Beneficiary and the company's president - were 
employed tor the entire quarter. The remaining three employees - the logistics director, the roasting 
specialist, and the quality control employee- were only employed by the Petitioner tor five weeks of that 
quarter. In addition, the Petitioner provided its quarterly federal tax return tor t he fourth quarter in 2016, 
which indicates that the Petitioner paid wages to only two employees as of December 12, 2016, two days 
prior to filing the petition. This inJonmttion is corroborated by the Petitioner's "Payroll Transactions by 
Payee" summary, which lists the Petitioner's employees from October 2016 to April 2017 and provides 
each employee's compensation and the date he or she was compensated. Although this wage summary 
indicates that the logistics director was paid wages in 2016 and 201 7, it does not indicate that he was 
continually employed by the Petitioner, as the only wages he received in 2016 were in November and he 
did not receive wages again until March 2017. Likewise, the summary indicates that no wages were paid 
in December 2016 to the roasting s pecialist, or to the quality control 
employee; thus the Petitioner did not establish that it employed a logistics director, a roasting specialist, 
or a quality control employee at the time of filing. Although the new organizational chart lists a new 
roasting specialist, the six-month wage summary indicates that this individual did not start receiving 
wages until March 2017. The new chart also names a roaster; however, this individual started receiving 
compensation in February 20 17. In light of this summary ofwages paid from October 2016 to April 
2017, it appears that the Beneficiary had no direct or indirect subordinates at the time of filing. 
In the denial decision, the Directo r commented on the wage evidence, finding that at the time of filing, 
the Petitioner did not have a sufficient support staff to relieve the Beneficiary from having to carry out its 
various ad mini st ~·a tive and operatjonal functions and thus it would not be able to employ the Beneficiary 
in a managerial capacity. · 
On appeal, the Petitioner disputes the Director's decision, claiming that the Beneficiary "will directly 
manage four managers," and specifying their position titles as logistics manager, quality control 
manager, roasting manager, and mechanical engineer. Although we acki1owledge the Petitioner's 
submission of a new organizational chart to support this new claim, the Petitioner must establish that all 
eligibility requirements for the immigration benetlt have been satisfied trom the time of the filing and 
continuing through adjudication. 8 C.F.R. § 103.2(b)(I) . We note that the previously submitted 
organizational charts and supp011ing statements indicated that the Petitioner's hierarchical structure at the 
time of tiling was different 1rom the current structure in that the organi7...ation did not include an 
engineering position or indicate that the quality control position was either subordinate to the Beneficiary 
or that this position was that of a manager. 
Moreover, as we noted above, the Petitioner's wage payment summary and 2016 fourth quarterly tcderal 
tax retum indicate that the petitioner had only two employees - the Beneliciary and the company's 
president - at the time this petition was filed. It is therefore unclear who, if not the Beneficiary, was 
available to carry out the job duties that would otherwise be assigned to the quality control and logistics 
employees. We further note the absence of sales and administrative employees. It is therefore unclear 
who, if not the Beneficiary, was available to process invoices, market and sell the Petitioner's products, 
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Mauer of7~USA. Inc. 
keep inventory, and carry out the various other operational and administrative duties that may be required 
of a wholesale distribution business. 
While no beneficiary is required to allocate 100% of his or her time to managerial-level tasks, the 
petitioner must establish that the non-qualifying tasks the beneficiary would pertonn are only incidental 
to the proposed position. 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 I 0 I (a)( 44 )(A) and (B) of the Act (requiring that one "primarily" perlonn the 
enumerated managerial or executive duties); Maller of' Church Scientology In/'/, 19 l&N Dec. 593, 604 
(Comm'r 1988). Here, the overall lack of a support sta!Tat the time of tiling indicates that the Petitioner 
was not able to relieve the Beneliciary from having to allocate his time primarily to carrying out the non­
managerial tasks that are critical to ensure its continued daily nmction. 
Although the Petitioner contends that the Beneficiary would oversee managerial and professional 
employees, the record does not support this claim; rather, the record indicates that the Beneficiary had no 
subordinates to oversee at the time of filing. The Petitioner must support its assertions with relevant, 
probative, and credible evidence. See Maller oj'Chawathe, 25 l&N Dec. 369, 376 (AAO 2010). Here, 
the Petitioner has not provided suflicient evidence to support the claim that at the time of filing it was 
adequately stalled with managers or professional employees for the Beneficiary to oversee. Moreover, 
the Petitioner had no lower-level employees to relieve the Beneficiary from having to primarily devote 
his time to the organization's operational and administrative functions at the time of filing. 
B. Duties 
Next, we will discuss the duties to be performed by the Beneficiary. We note that the actual duties 
themselves reveal the tme nature of the employment. Fedin Bros. Co .. Ltd v. Sava, 724 F. Supp. II 03, 
1108 (E.D.N.Y. 1989), afj"d, 905 F.2d 41 (2d. Cir. 1990). 
In its initial cover letter, the Petitioner provided a job duty breakdown, which indicated that Beneficiary 
will distribute his time as !allows: 
• 20% pcrlom1ing operations m::magement, which would involve establishing and overseeing the 
implementation of policies and procedures, creating plans to manage "personnel requirements," 
implementing policies lor optimal profitability, "intcrface[ing] with senior-level executives," and 
approving policies and procedures for finance, marketing, business development, customer 
service, operations, accounting, IT, and human resources: 
• I 0% directing operational policies and procedures associated with finance, marketing, business 
development, customer service, operations, accounting, IT, and human resources, coordinating 
quality assurance, managing the development of operational policies by relying on operations 
and organizational research to develop new products and expand the business, "direct[ing] the 
perlormance of panning, lorecasting, and resource allocation," and "direct(ing] the monitoring of 
quality, quantity, cost. And efficiency of the Company's products"; 
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Mauer ofl~USA. Inc: 
• 12% overseeing personnel scheduling and operations research modeling, which would require 
assessment of the Petitioner's technical needs and identifying personnel who can meet those 
needs, resolving scheduling problems, and overseeing scheduling changes and schedule 
compliance to "ensure that daily personnel allocation is completed"; 
• 12% directing product purchasing and sales, selecting vendors and managing vendor relations, 
directing purchasing negotiations, and overseeing the purchase of materials required for product 
distribution; 
• 12% directing inventory management by determining inventory levels based on projected 
product requirements, coordinating product o.rders with product demand, and managing the 
process of receiving products and scheduling merchandise delivery to customers: 
• 8% managing and approving budgets, analyzing "budget variances," and making 
recommendations for liscal cuts; 
• 7% managing and overseeing the execution of initiatives by directing personnel and resource 
allocation for projects, analyzing progress of a project, detennining "senior-level stalling 
requirements and assignments," and making presentations at trade shows and seminars; 
• 7% managing transportation, which includes directing transportation logistics, coordinating 
purchasing, inventory, and distribution requirements, and choosing modes of transportation; 
• 7% directing distribution logistics, which includes managing product distribution and directing 
distribution of wholesale products by managing timing and transportation; and 
• 5% managing senior-level personnel through hiring, training, evaluating, and promotion of 
"senior-levelmanagcrs." 
In the RFE, the Director informed the Petitioner that it provided an overly vague job description and 
did not explain how the Bcneliciary would perform his assigned job duties. The Director instructed 
the Petitioner to list the Beneficiary's typical daily job duties and the percentage of time he would 
allocate to each duty. 
In response, the Petitioner stated that the Beneficiary would spend all of his time directing 
"managerial-level executives" and "reporting oversight of analyses," developing and implementing 
corporate policies, coordinating projects with senior executives "worldwide," and "managing 
executive-level personnel." The Petitioner did not, however, specify any actual projects that were 
being worked on at the time of filing or identify any "senior executives" with whom the Beneliciary 
would coordinate the various aspects of these unknown projects. The Petitioner also neglected to 
explain how the Beneficiary would carry out the listed duties within the scope of an entity that 
employed only the Bencliciary and one other employee- the Beneficiary's superior- and had no 
subordinate staff at the time of filing to implement the policies the Beneflciary would create or 
execute the underlying duties he was supposed to monitor. If USCIS Ends reason to believe that an 
assertion stated in the petition is not true, USCIS may reject that assertion. See, e.g, Section 204(b) 
of the Act, 8 U.S.C. § 1154(b); Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann 
Bakery Shop. Inc. v. Nelson, 705 F. Supp. 7, I 0 (D.D.C. 1988); Systronics Corp. v. INS. 153 F. Supp. 
2d 7, 15 (D.D.C. 2001). Further, although the Petitioner's statement contained a job duty 
breakdown, the content was identical to the job 'duty breakdown that was previously provided in the 
original supporting statement, The Petitioner did not provide additional information about the 
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Maller ofT-USA. Inc. 
Beneficiary's job duties to address the deficiencies that were noted in the RFE, nor did the Petitioner 
adequately explain how the Beneficiary would focus primarily on management and oversight within 
the scope of an organization that lacked a staff to carry out its operational and administrative tasks. 
In the denial decision, the Director determined that the Petitioner provided a deficient job description 
that lacked sufficient information about the Beneficiary's actually duties. The Director also found 
that the Beneliciary would carry out a number of non-managerial tasks and that despite his senior 
level of authority, he would not primarily devote his time to managerial job duties. 
We agree with the Director's assessment of the job description. Although the Petitioner provided a 
lengthy job description, it was often repetitive in its reference to the Beneficiary's oversight of the 
implementation of policies 1md his development of "policies atid procedures for finance, marketing, 
business development, customer service. operations, accounting, information technology, and human 
resources." The Petitioner repeatedly used these and similar phrases to describe the Beneficiary's 
proposed position without providing substantive content or clarifying the Beneficiary's actual job duties. 
The job description also uses ambiguous tem1inology, such as "direct" and "oversee," which indicates 
that the Beneficiary may have a high degree of discretionary, but does not adequately expound on the 
actions the Beneficiary actually carries ouL Further, the Petitioner made numerous references to "senior­
level" staff, which does not appear to have been part of the Petitioner's organization at the time ~ffiling, 
as discussed in the above "Staffing" portion of this analysis. Therefore, while the job description 
indicates that the Beneficiary would only monitor others as they carry out the underlying operational and 
administrative tasks, it appears to offer invalid information when considered within the scope of an entity 
that lacked any support personnel at the time of tiling. Although the Petitioner provided evidence of 
more staff being hired in 2017, as previously noted, all eligibility requirements must have been satisfied 
from the time of the tiling and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). Therefore, any 
organizational changes the Petitioner may have undergone since the filing of the petition would be 
irrelevant tor the purpose of detennining the Petitioner's eligibility at the time of filing. 
In the present matter, we lind that the Petitioner made broad and deficient claims about the Beneficiary's 
proposed job duties and provided insutliCicnt evidence to show that it was able to relieve the Beneficiary 
from having to allocate his time primarily to non-managerial job duties at the time the petition was tiled. 
Therefore, we cannot conclude that the Beneficiary would be employed in a managerial capacity under 
an extended petition. 
Ill. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that the Beneficiary 
will be employed in the United States in a ma_nagerial capacity under an extended petition. The 
appeal will be dismissed tor this reason. 
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Mauer ofl~USA. Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-USA. Inc, ID# 1041548 (AAO Apr. 27, 2018) 
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