dismissed L-1A Case: Food Service And Distribution

U.S. Citizenship 
and Immigration 
Services 
MATTER OF O-F-U.S.A., INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY26,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a restaurant operator and distributor of foreign specialty foods, seeks to extend the 
Beneficiary's temporary employment as its president under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 101 (a)( 15)(L), 
8 U.S.C. § IIOI(a)(IS)(L). The L-IA 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 new office extension petition concluding 
that the Petitioner did not establish, as required, that the Beneficiary would be employed in a 
managerial capacity. 
On appeal, the Petitioner submits a brief disputing the denial, claiming that the Beneficiary will 
primarily perform managerial job duties. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification. a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a position involving 
specialized knowledge, for one continuous year within three years preceding the Beneficiary's 
application for admission into the United States. Section !Ol(a)(IS)(L) of the Act. 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, executive, or specialized 
knowledge capacity. !d. 
A petitioner seeking to extend an L-1 A 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 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
Maller of O-F-U.S.A., Inc. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary would be employed in 
the United States in a managerial or executive capacity. As the appeal does not include a claim that 
the Beneficiary will be employed in an executive capacity, we restrict our analysis to whether the 
Beneficiary will be employed in a managerial capacity. 
The term "managerial capacity" is defined as "an assignment within an organization in which the 
employee primarily": 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 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; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee is 
directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. 
Section IOI(a)(44)(A) of the Act. Further, "[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." Jd. 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 
(USCIS) must take into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. See section I 01 (a)( 44)(C) of the Act. 
A. Duties 
When examining the managerial 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). 
Based on the statutory definition of managerial capacity, the Petitioner must tirst 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 
2 
Malter ofO-F-US.A., Inc. 
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); Champion World, 940 F.2d 1533. 
The Petitioner filed the Form I-129 claiming three employees and a projected 2016 gross income of 
$152,509. The Petitioner states that it operates as an importer of foreign frozen food products, which it 
sells through distributors and through its restaurant, which it opened for the purpose of showcasing its 
products and introducing them into the marketplace. In a supplemental statement, the Beneficiary, in his 
capacity as the Petitioner's president, provided a list of 18 duties and the percentage of time he would 
spend on each.1 The toll owing duties would require at least 10% of the Beneficiary's time: 
• Establishing and implementing business strategies, business plans and operations 
procedures and timetables. (15%) 
• Meeting with managers to discuss progress and strategies. (15%) 
• Meeting with distributors and suppliers to develop the business relationship and to 
identify new or potential areas of development. ( l 0%) 
• Advising on the marketing plan. (1 0%) 
The Petitioner also provided an organizational chart showing the Beneficiary overseeing two 
employees with managerial position titles - a restaurant manager and a wholesale distribution 
manager. 
The Director issued a request for evidence (RFE) advising the Petitioner that it did not provide 
sufticient evidence to establish that it would employ the Beneficiary in a managerial capacity. The 
Director acknowledged the submitted job description, but stated that she was unable to determine 
what specific tasks the Beneficiary would perform or how the Petitioner operates on a daily basis. 
The Director also questioned whether the Beneficiary's subordinates with managerial position titles 
are actually managerial or professional employees. 
In response, the Petitioner provided a statement explaining that its goal in commencing operations 
was to create a brand and marketing plan for its products and to tind distribution channels to sell 
those products. The Petitioner claimed that the Beneficiary has worked with its managers and with 
the foreign entity's board of directors to drive up the sales of its products by setting up a distribution 
system and implementing a marketing plan. The Petitioner did not specify any aspects of its 
marketing plan or explain precisely what role the Beneficiary assumes in the marketing of the 
Petitioner's products. 
The Petitioner also restated the job description it originally provided in its supporting statement and 
went on to reiterate that the Beneficiary oversees two subordinate managers, indicating that he 
allocates 15-30% of his time to discussing business strategies with the restaurant manager, who 
1 
As the Director included the complete list of duties and the corresponding percentage breakdown in the denial, we will 
not restate this information in its entirety. 
J 
Maller of O-F-U.S.A., Inc. 
oversees the restaurant's daily operations and is responsible for the retail sales of the Petitioner's 
frozen food products. The Petitioner did not specify any strategies the restaurant manager 
implemented as a result of the Beneficiary's input. The Petitioner also stated that the Beneficiary 
maintains a constant line of communication with his subordinate, a wholesale distribution manager, 
stating that the Beneficiary "directs ... and advises her on pricing levels and commitments that can 
be undertaken." The Petitioner explained that the Beneficiary's role with respect to distributors is 
"to iron-out [sic] the details of an agreement" in order to protect the Petitioner from entering into a 
contract whose terms are not beneficial for the Petitioner or would impede company growth. 
In general, the Petitioner stated that the Beneficiary's supervisory duties include meeting weekly 
with subordinate managers to make sure that they understand and are able to implement company 
policies and procedures and convey job responsibilities to their respective subordinates. The 
Petitioner also indicated that the Beneficiary communicates with his subordinate managers regarding 
matters of quality control, customer satisfaction, sales targets, and time management, and further 
noted that the Beneficiary conducts regular performance reviews and makes sure the managers' 
training needs are met. 
In denying the petition the Director determined that the Beneficiary's proposed position involves 
certain non-managerial job duties, including meeting with distributors and suppliers and providing 
advice on marketing. The Director also found that the Beneficiary would oversee employees who 
are not supervisors or professionals, despite their respective position titles. Based partly on these 
findings the Director concluded that the Beneficiary would not primarily perform managerial duties. 
On appeal, the Petitioner disputes the basis for the denial, pointing out that the Director relied on 
only two of the Beneficiary's job duties to conclude that the Beneficiary would primarily perform 
non-managerial duties. The Petitioner contends that even if the Director properly characterized the 
two cited job duties as non-managerial, the percentage breakdown indicates that these duties only 
account for 20% of the Beneficiary's time and thus would not serve as a sufficient basis for denying 
the petition. 
While we agree that the Director's conclusion is based, in part, on an incomplete analysis of the 
Beneficiary's job duties, we find that most of the items that comprise the job description were so 
vague as to make a finding based on the Beneficiary's actual job duties virtually impossible. 
Without meaningful content specifying what actual daily job duties the Beneficiary would perform 
within the context of the Petitioner's restaurant and wholesale distribution operations we cannot 
determine whether the Beneficiary would allocate his time primarily to managerial job duties. The 
actual duties themselves reveal the true nature of the employment. Fe din Bros. Co .. Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N. Y. 1989), afJ'd, 905 F.2d 41 (2d. Cir. 1990). 
Here, the Petitioner indicated that 15% of the Beneficiary's time would be allocated to establishing 
and implementing business strategies and setting up timetables. However, the Petitioner did not 
specify the types of strategies the Beneficiary has implemented or identify any timetables he set for 
reaching specific benchmarks to explain why the Beneficiary would allocate his time to these duties 
4 
Mauer afO-F-US.A., Inc. 
as part of his daily or even weekly routine. The Petitioner's claim that the Beneficiary would review 
"important business documents and company financials" is also overly broad, as it does not specify 
what types of "business documents" and "company financials" the Beneficiary would review or state 
what actions result from such review. lt is also unclear how reviewing company financials is 
different from reviewing the Petitioner's annual, quarterly, and monthly budgets or overseeing the 
company's financial management, all of which were assigned separate time allocations that 
cumulatively account for another 15% of the Beneficiary's time. 
Further, while the Petitioner claimed that the Beneficiary would make structural changes by hiring 
and tiring personnel, its current three-person staff does not support a tinding that such changes 
would be warranted frequently enough that this duty would be deemed part of the Beneficiary's 
daily or weekly routine. Likewise, the claim that the Beneficiary would make a monthly work plan 
and generate quarterly and yearly progress reports provides little additional insight into what the 
Beneficiary would be doing on a day-to-day basis. The same applies to the claim that the 
Beneficiary would read and understand applicable laws and regulations, meet with professionals to 
discuss legal matters, and see an accountant to review financial documents. The Petitioner did not 
explain what types of laws and regulations the Beneficiary would encounter in the course of 
business, nor did it specify the types of legal matters that would require the expertise of an attorney 
or the frequency with which such matters would arise. While we do not doubt that the Beneficiary 
will have responsibility over the Petitioner's financial and legal matters, the record does not establish 
a basis for claiming that the Beneficiary would be required to consistently perform any of these job 
duties as a regular part of his daily or weekly routine. 
In sum, despite the Petitioner's submission of a position description that assigned percentages to areas 
of responsibility, the description contains few speci fie job duties and instead consists primarily of 
general infmmation that includes actions the Beneficiary may catTY out intennittently as the need arises, 
rather than tasks that the Beneficiary would perform on a daily basis within the context of the 
Petitioner's restaurant and wholesale distribution operations. Therefore we catmot conclude based on 
the job description that the Beneticiary's day-to-day job duties would be primarily managerial in nature. 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining a beneficiary's claimed managerial capacity, 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. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10l(a)(44)(A)(i) and (ii) 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 "tirsl line supervisor is not considered to be acting in a managerial capacity 
5 
Matter of O-F-U.S.A .. Inc. 
merely by virtue of the supervisor's supervisory duties unless the employees supervised are 
professional." Section 101(a)(44)(A)(iv) of the Act. 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)( I )(ii)(B)(3). 
In the present matter, while we do not dispute that the Beneficiary has the authority to hire and tire 
employees and take other personnel actions, the record does not establish that the Petitioner's 
organizational hierarchy at the time of filing had the management structure in place to support the 
Beneficiary as a personnel manager who would primarily oversee the work of supervisory, 
professional, or managerial employees. See section 101 (a)( 44)(A)(ii) of the Act. As noted earlier, 
the petition indicates that the Petitioner claimed three employees at the time of filing. In its 
supporting statement, the Petitioner referred to its business as being "in its infancy stage" and 
requiring "additional strategic start-up work" to meet its sales objectives. 
The Petitioner also provided an organizational chart that depicted the Petitioner's sta11ing at the time 
the petition was tiled. The chart shows a four-tier staffing structure with the Beneficiary at the top 
of the hierarchy, directly supervising a wholesale distribution manager and a restaurant manager. 
The next staffing tier shows a vacant wholesale distribution coordinator position subordinate to the 
wholesale distribution manager and a vacant assistant restaurant manager/cashier as the restaurant 
manager's direct subordinate. The bottom tier of the hierarchy shows a cook and a vacant 
housekeeping position, both restaurant-based positions. Therefore, the only employee available to 
staff the wholesale distribution operation was a wholesale distribution manager and the only 
employees depicted within the hierarchy of the restaurant operation included a restaurant manager 
and a cook. Aside from the vacant positions, we note that the chart did not account for any wait staff 
positions within the restaurant business. 
In response to the Director's RFE, the Petitioner supplemented the record with a new organizational 
chart, which depicts a different organizational hierarchy consisting of the Beneficiary at the top of 
the hierarchy, followed by an accounting firm comprising a "Financial Department," a wholesale 
distribution manager comprising the "Whole Sale Department," and a restaurant manager heading 
the "Retail Department," which also includes a cook as the restaurant manager's sole subordinate. 
The new chart eliminated the assistant restaurant manager/cashier position, which was depicted in 
the original organizational chart. 
The Petitioner also provided evidence of the wages it paid to employees during the 2016 third 
quarter, the three-month period that immediately preceded the filing of this petition in early October 
of that year. The quarterly wage document lists three employees, but indicates that only two were 
employed by September 2016. While the Petitioner claims to have had three employees at the time 
of filing, the record does not include evidence that substantiates that claim. Rather, it appears that 
one of those three employees may have left the company prior to the filing of the petition. The 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 l&N Dec. 369,376 (AAO 2010). 
6 
.
Matfer ofO-F-U S.A., Inc. 
Furthermore, although the Peti tioner initially indicated that its three emp loyees 'vvorked on a f ull­
time bas is, the 2016 third quarter wage report shows only the restaurant manager receivi ng a salary 
that was commensurate with full-time emp loyment. The other two empl oyees, who, acco rdi ng to the 
orga nizatio nal chart, filled the positions of the 'vvholesale distributi on manager and the restaurant's 
cook, respec tively, received salaries that were not commensurate with those of full-time e mployee s. 
Based on the Petitioner's claim regard ing the Beneficiary's limited invol ve ment in perfor ming the 
daily operational tasks, it appear s that the Petitioner's wholesal e d istributi o:1 operation was run 
pri marily by a single part-time employee , whose actual role in relation to tha t ope ration is 
questionab le based on variou s anoma lies and inco nsistencies in the record. First, we note that the 
Petitio ner provided t wo different lists of job duties - initially with other sup portin g doc uments at the 
time of filing and subsequently in response to the RFE - for the position of wholesa le distrib ution 
manage r. While some of the j ob duties are the same, others , such as searchi ng for distributors and 
retailers to carry the Petitioner's products , estab lishin g relations hips with customers , and discuss ing 
marketing plans and marke ting contributi ons with di stributors, were only listed in the job descrip tion 
provi ded in the RFE response. The record also contain s incons istent information as to the position 
title of whom the organizatio nal chart and corresponding job descriptio n refer to 
as the wholesale distribution manage r in so me documents, whi le the Petitioner's emp loyee training 
record refers to the same individu al as "ass istant sales and marketin g manager." The record also 
contai ns the Petitioner's bank statem ents acco mpanied by canceled checks , which show payments 
made to for "tip s"; thi s anoma ly seems to suggest that may work in 
the Petitioner's restaurant, rath er than its wholesale distribution operation as the Petitioner claims. 
Furth er, the record is incon sistent as to information pertaining to the restau rant' s cook . While t he 
Petitio ner' s organization al charts refe r to the cook as ,_ "and' ' respectively , 
there is no emp loyee with this name in its payroll records or quarterly wage reports , whic h d o 
identify an The Peti tioner provided cancelled checks issued to bot h an ' 
' and an durin g the same month , for " outside service s" and "o uts ide sales," 
durin g months that precede the cook 's claimed August 2016 start date. We cannot determi ne 
whether these names refer to the same indi vidual or what types o f "ou rside sales" a cook would 
provide to a restaura nt The record lacks independent, objective evidence reso lving these numer ous 
discrepa ncies in the record , t hereby precl udin g a n understandin g as to the actual facts pertainin g to 
the Petitioner's staffi ng. Matter (~f Ho, l 9 1&1\. Dec. 582 , 591-9 2 ( BlA 1988) . 
rn denying the petition, the Director detennined that neither the Petitioner 's organ izational hierarch y 
nor the job duties of the Beneficiary's subord inates support the clairn t hat the Beneficiary would 
primarily manage a staff of profess iona l, manage rial, or supervisory perso nnel. Rat her, the Director 
found that m ost of the job duties assjgned to the Benefic iary's subordi nates are not managerial and 
would not require a bachelor 's degree to exec ute. 
We agree wit h the Direct or's conclusion. Although the Pet itioner's original orga nizational chart 
illustra tes both the Beneficiary' s subord inates as havi ng a t lea st one sub ordinate of their own, the 
record shows that the wholesale distr ibution manager did not have any subord inates at the time of 
7 
Malter of O-F-U.S.A., Inc. 
filing and the revised organizational chart indicates that the Petitioner no longer intends to fill the 
position of wholesale distribution coordinator, which was depicted as the wholesale distribution 
manager's subordinate at the time of filing. As such, the wholesale distribution manager does not 
manage or supervise anyone despite what her position title suggests, and the Petitioner has not 
established that her job duties, which include market research and marketing, for example, are 
otherwise managerial. 
Further, 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 101(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." Here, the record does not establish that 
the Petitioner's wholesale distribution manager has the educational credentials or carries out the job 
duties commensurate with those of a professional employee. 
The Petitioner's restaurant operation depicts a basic hierarchy consisting of a restaurant manager and 
a part-time cook. As indicated above, the record lacks payroll evidence that shows precisely whom 
the Petitioner employed at the time of filing. Therefore, it is unclear whether both the restaurant 
manager and the cook were part of the Petitioner's organization during the relevant time period. At 
best, it appears that the Petitioner's restaurant operated with one part-time cook and a full-time 
restaurant manager. 
Therefore, it appears the restaurant manager would devote a limited portion of her time to overseeing 
the cook, while potentially having to operate the cash register, wait on the restaurant's patrons, and 
potentially engage in food preparation, as the restaurant is open for 50 hours per week. The Petitioner 
did not explain how a single employee could perfom1 all of the operational duties of the restaurant 
during half of its hours of business, when the cook is not working. Further, we note that the 
Beneficiary's worksite will be at the restaurant, as the record indicates that the company had decided 
not to renew its office lease and instead would be headquartered at the restaurant as of October 2016. 
While the Petitioner claims that the restaurant manager and cook relieve the Beneficiary from having to 
carry out the operational tasks involved in running a restaurant, we find that the subordinate tier 
illustrated below the restaurant manager is not sufficient to establish that the restaurant manager 
qualities as a managerial or supervisory employee or that she and a pmi-time cook, if still employed, 
would relieve the Beneficiary from involvement in the restaurant's day-to-day operations. 
While the Petitioner contends on appeal that its small size "at this initial stage of operations" does 
not prevent the Beneficiary from assuming a managerial position, the various deficiencies described 
above give us reason to question the Petitioner's ability to support the Beneficiary in a primarily 
managerial capacity, as the record does not establish that the Petitioner would have the staffing to 
relieve the Beneficiary from having to allocate his time primarily to non-managerial tasks that are 
essential for the Petitioner's continued operation. Therefore, despite establishing that the 
8 
Matter ofO-F-US.A., Inc. 
Beneficiary had the discretionary authority over the Petitioner's staff and its respective operations, 
the record is not persuasive in establishing that the Petitioner's organization at the time of tiling was 
sutlicient to support the Beneficiary in a primarily managerial position where his primary concern 
would be managing a supervisory, professional, or managerial staff. 
Alternatively, the term "function manager" applies generally when a beneficiary does not supervise 
or control the work of a subordinate stafi but instead is primarily responsible for managing an 
"essential function" within the organization. See section l 0 I (a)( 44 )(A)(ii) of the Act. 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.P.R. § 214.2(1)(3)(ii). In addition, a 
petitioner's description of a beneficiary's daily duties must demonstrate that the beneficiary will 
manage the function rather than perform duties related to the function. See Matter of' Z-A-, Inc., 
Adopted Decision 2016-02 (AAO Apr. 14, 2016). 
In this matter, the Petitioner has not provided evidence to demonstrate that the Beneficiary manages an 
essential function. Although the Petitioner claims that the Beneficiary manages the essential marketing 
function, the limited size of the Petitioner's support stati indicates that the Beneficiary would not be 
managing a single function. It is unclear who, if not the Beneficiary, would oversee the employees who 
carry out the Petitioner's daily operational tasks. Further, as indicated above, in order to establish that 
the Beneficiary operates as a function manager, the Petitioner must provide a job description 
establishing the specific duties that the Beneficiary would perfom1 to establish precisely how the 
function would be managed. Here, the Beneficiary's job description was vague and did not indicate he 
would assume the role of a function manager or that he would primarily perform managerial tasks 
related to the marketing function. Therefore, we cannot conclude that the Beneficiary would primarily 
manage the marketing function as the Petitioner claims on appeal. Again, the Petitioner must support 
its assertions with relevant, probative, and credible evidence. See Chawathe, 25 l&N Dec. at 376. 
For the reasons discussed above, the evidence submitted does not establish that the Beneficiary 
would be employed in a managerial capacity under the extended petition. 
Ill. CONCLUSION 
The appeal must be dismissed as the Petitioner did not establish that it will employ the Beneficiary 
in a managerial capacity under the extended petition. 
ORDER: The appeal is dismissed. 
Cite as Matter oj'O-F-US.A., Inc., ID# 364312 (AAO May 26, 2017) 
9