dismissed L-1A Case: Food Wholesale

U.S. Citizenship 
and Immigration 
Services 
MATTER OF .I-E-USA INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR.I3,2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an international food wholesaler, seeks to continue the Beneficiary's employment as 
its president under the L-1 A nonimmigrant classification for intracompany transferees 1 See 
Immigration and Nationality Act (the Act) section IOI(a)(IS)(L), 8 U.S.C. § IIOI(a)(IS)(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 Vermont 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 provides job descriptions for its current employees and states that the 
Beneficiary's proposed employment fits the criteria of managerial capacity. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classitication, 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. ld. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
AprilS, 2016, until April4, 2017. 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)(ii)(F). The regulation at 
8 C.F.R. § 214.2(\)(J)(v)(C) allows a "new office" operation one year within the date of approval of the petition to 
support an executive or managerial position. 
Malter of.J-E-USA Inc 
A petitioner seeking to extend an L-1 A petition that involved a new oftice 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 11nancial 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(l)(l4)(ii). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Petitioner claims that the Beneficiary's proposed position will be in a managerial capacity? The 
Director determined that the Petitioner did not provide sufficient evidence to establish that the 
Beneficiary's subordinates are supervisory, professional, or managerial employees and found that 
the Petitioner's management structure was not commensurate with the nature and scope of the 
business. The Director further found that, beyond the Petitioner-generated pay stubs, the record 
lacks evidence of wages paid to the Beneficiary's subordinates and concluded that the Petitioner did 
not establish that the Beneficiary would be employed in a managerial capacity. 
On appeal, the Petitioner provides job descriptions for its current staff and 2016 W-2 statements for 
three of its employees. In an appeal brief, the Petitioner contends that Beneficiary's subordinates are 
supervisory and professional and alternatively argues that the Beneficiary manages marketing and 
purchasing, which are critical to the Petitioner's operation. 
The statute defines the term "managerial capacity" as an assignment in which an 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; has the authority to hire and tire or 
recommend those as well as other personnel actions, or fi.mctions 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 
!Ol(a)(44)(A) of the Act. 
When examining the managerial capacity of a given beneficiary, we will look 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(l)(3)(ii). Beyond the required description of the job duties, 
we examine 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. 
2 The Petitioner did not claim that the Beneficiary would be employed in an executive capacity. Therefore, our analysis 
will address only the Petitioner's claim that the Beneficiary's proposed position would be in a managerial capacity. 
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Mauer of.J-E-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. Duties 
Based on the definition of managerial capacity, the Petitioner must first 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 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 at 1533. 
In support of the petition, the Petitioner provided a duty breakdown with time allocations. The Petitioner 
listed the same job duties in the Beneficiary's resume, which indicates that the Beneficiary has carried 
out this list of duties since April 2016, when she first assumed her position as president of the new onice. 
The Petitioner did not provide a separate list of duties that the Beneficiary would perform under an 
extended petition; nor did it state whether the Beneficiary would continue to perfom1 the same list of 
duties as those she performed when the Petitioner was a new onice. 
Moreover, the Director subsequently issued a request for evidence (RFE) intom1ing the Petitioner that it 
must provide a description of the Beneficiary's duties for the previous year and under the extended 
petttton. The Director also noted that the job description the Petitioner originally submitted was 
insut1icient because it was vague and did not list actual tasks undertaken by the Beneficiary. 
In response, the Petitioner provided a statement pointing out several of the actions that the Beneficiary 
has undertaken thus far in her role as president, including choosing a more suitable business location, 
hiring a stafi of five employees, overseeing the department managers, and developing departmental 
goals. The Petitioner stated that as it enters its second year of operation, the Beneficiary will be 
"responsible for communicating and consulting with the foreign parent company to develop an 
international plan." The Petitioner claimed that the Beneficiary will be required to formulate goals and 
policies that are consistent with those of the foreign parent entity, determine statting needs, formulate job 
duties, and consider the Petitioner's work Ioree, customer and supplier base, and applicable regulations 
for transporting and handling goods. 
In addition, the Petitioner submitted excerpts of its response to an RFE that pertained to its previously 
tiled new office petition. Such evidence included the same job description that the current RFE 
referenced as "so vague that the duties could have applied to an executive or manager working in any 
industry." Despite this assessment of the job description in the RFE, the Petitioner did not provide a 
more detailed duty breakdown or differentiate between duties that the Beneficiary performed during the 
Petitioner's new office stage of operation and the duties she would perform under an extended petition. 
As the Petitioner resubmitted a job description that was previously deemed to be deficient, it did not 
adequately respond to the RFE. 
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In the denial decision, the Director concluded that the Petitioner's RFE response did not establish 
that the Beneticiary would be employed in a managerial capacity under an approved petition. The 
Director noted that the Petitioner did not list the Beneficiary's specific actions or accomplishments 
and instead made broad references to the Beneficiary's management of department managers, 
development of departmental policies, and her communication with the foreign parent entity. 
On appeal, the Petitioner contends that the Beneficiary meets the criteria of a function manager in 
that she manages the marketing and purchasing-· function. It does not, however, provide additional 
information about the Beneficiary's job duties to address the Director's concerns about the 
previously submitted vague job description. In order to properly support a function manager claim, 
it is critical to not only identify an essential function, but also to clearly describe the duties to be 
performed in managing that function. The actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aj]"d, 905 
F.2d 41 (2d. Cir. 1990). 
Here, the Petitioner has not provided sufficient evidence to meet this fundamental criteria. Instead, it 
submitted and resubmitted the same deficient job description that does not differentiate between the 
company's earlier and current phases of operation and is comprised of ambiguous phrases, such as 
"[o]verseeing activitie~" and "[d]irecting and coordinating activities of business." As properly noted 
by the Director, these phrases are overly broad and do not cite to specific actions that the Beneficiary 
executed during the Petitioner's first year of operation as a new office, nor do they convey a 
meaningful understanding of the tasks that the Beneficiary will perform under an extended petition, 
now that the Petitioner no longer qualifies as a new office. See 8 C.F.R. § 214.2(1)(1 )(ii)(F). 
Reciting the Beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the Beneficiary's daily job duties. 
8 C.F.R. § 214.2(1)(3)(ii). In the present matter, the Petitioner has not provided any detail or 
explanation of the Beneficiary's activities in the course of their daily routine. Therefore, the job 
description is not sufficient to support the claim that the Beneficiary would assume the role of either 
a personnel or a function manager under the extended petition. As discussed herein, the Petitioner 
provided a delicient job description, which does not demonstrate that the Beneficiary's daily job 
duties are indicative of managing the marketing and purchasing functions. · 
B. Statling 
As indicated above, the statutory definition of "managerial capacity" allows for both "personnel 
managers" and "function managers." ·See section I 01 (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 "first line supervisor is not considered to be acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are 
professional." Section JOJ(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(l)(l)(ii)(B)(3). 
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Matter of J-E-USA Inc 
Finally, we must take into account an organization's reasonable needs in light of its overall purpose 
and stage of development whenever we use staffing levels as a factor in determining whether an 
individual is acting in a managerial or executive capacity. See section !Ol(a)(44)(C) of the Act. 
In the present matter, the Petitioner claimed six employees at the time of filing. In its RFE response, 
the Petitioner stated that the Beneficiary recruited five new employees - a marketing manager, a 
purchasing manager, a logistics manager, a finance manager, and a sales representative - during its 
first year of operation. The Petitioner provided brief job descriptions for these positions, indicating 
that the managers in charge of marketing, purchasing, and logistics will all be responsible for 
recruiting, training, and overseeing their respective subordinates, thereby indicating that the 
managers would not be solely responsible for carrying out the duties of their respective departments. 
The Petitioner also provided an organizational chart depicting the Beneficiary at the top of its 
projected staffing hierarchy directly overseeing three department managers- a marketing and sales 
manager, a purchase manager, and a logistics manager. The chart depicts the marketing and sales 
manager as overseeing a marketing analyst and _two sales representatives, the purchase manager as 
overseeing the cost and quality control coordinators, and the logistics manager as overseeing a 
domestic shipping coordinator, a delivery person, and contractors who will be retained to handle 
international shipping and customs clearance. To the extent that the organizational chart shows a 
contracted CPA as comprising the entire finance department, it is inconsistent with the RFE response 
statement, where the Petitioner claimed that it hired a finance manager in it is first year of operation. 
Further, the Petitioner provided a business plan with a three-year hiring timeline, which is also 
inconsistent with claims made in the RFE response statement. Namely, the RFE response states that 
the Petitioner hired a marketing, purchasing, and logistics manager, despite having provided a hiring 
timeline indicating that a sales and marketing manager would be hired during the Petitioner's second 
year of operation, while the logistics and purchasing manager positions would not be filled until its 
third operational year. As noted above, the Petitioner also indicated that it hired a finance manager 
during its initial year of operation; this claim; however, is inconsistent with the Petitioner's hiring 
timeline and organizational chart, neither of which includes a finance manager position. The 
Petitioner must resolve these inconsistencies in the record with independent, objective evidence 
pointingto where the truth lies. Matter o[Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
In the denial decision, the Director also point~d to an anomaly, observing that the Petitioner's 
quarterly tax returns were completed by an outside accounting service and not by the individual 
whom the Petitioner identified as its finance manager. The Director therefore determined that the 
Petitioner did not adequately support the claim that it employs a finance manager and further found 
that the record lacks sufficient evidence to show that the Beneficiary's subordinates are degreed 
professionals. 
On appeal, the Petitioner contends that the marketing and purchasing managers are both supervisory 
employees as well as degreed professionals. The record does not, however, contain reliable 
corroborating evidence to show that either individual has subordinate employees or possesses a level 
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Malter o(J-E-USA Inc 
of education that meets the definition of professiona1.3 The Petitioner must support its assertions 
with relevant, probative, and credible evidence. See Maller ()( Chawathe, 25 I&N Dec. 369, 376 
(AAO 20 I 0). Here, while the Petitioner provides job descriptions and states the level of education 
that each employee is claimed to possess, it does not provide the baccalaureate certificates issued by 
an educational institution to support its claims. Thus we cannot determine whether the Beneficiary's 
subordinates at the time of filing were professionals. 
Further, the Petitioner claims that the individual assigned to the position of marketing manager 4 
"doubles temporarily" as a purchasing assistant. The claim that one employee assumes these 
multiple roles detracts from the claim that this subordinate holds a professional or managerial 
position, as there is no way to detennine how much of his time is devoted to the non-professional 
and non-managerial duties of a purchasing assistant versus those of a marketing manager. The 
evidence on appeal also includes a "Memorandum," dated April 2016, which authorizes the hiring of 
an administration manager. To the extent that an administration manager position was not included 
either in the Petitioner's projected organizational chart or in its personnel plan, this is an incongruity 
that must be addre.ssed. See Ho, 19 I&N Dec. at 591-92. 
In light of the various anomalies and deficiencies described above, we lind that the Petitioner has not 
established that the Beneficiary would be a personnel manager, whose time would be primarily 
allocated t~ overseeing supervisory, professional, or managerial employees. Moreover, the record 
lacks sufficient evidence to show precisely whom the Petitioner employed when the petition was 
filed such that it would effectively show that the Beneficiary was relieved from having to carry out 
the underlying duties of an essential function. While the Petitioner provided IRS Form W-2s for 
2016 showing that it paid wages to three employees prior to the date the petition was filed, it did not 
provide similar evidence that pertains to the time of tiling. Although the Petitioner provided 
employment agreements for a marketing manager and logistics manager, indicating that both were 
employed at the time of tiling, it did not provide wage evidence to corroborate either employee's 
dates of employment. 
The Petitioner also provided an employment agreement for a third employee, who is claimed to have 
been the Petitioner's sales representative and a sales assistant at various times. However, neither 
agreement covers the time period during which the petition was tiled. Rather, the original agreement 
for a sales representative indicates that it covered a one-year period of employment from November 
I, 2015, through October 31,2016, and a follow-up employment agreement documenting a change 
3 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 10l(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." 
4 The Petitioner provided an employment agreement changing the position title of the marketing manager to that of sales 
and marketing manager, effective May 2017. As the instant petition was filed in April2017 and the agreement had not 
yet been executed, the change in position titles was not in effect as of the time of filing. 
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Mall er (?f.l-E-USA Inc 
in pos1t10n title from sales representative to sales assistant, effective May 2017. This change, 
however, took place after the petition was filed and the Petitioner did not provide evidence to show 
that an employment agreement tor a sales representative or a sales assistant was in effect at the time 
of tiling. See Chawathe, 25 I&N Dec. at 3 76. The evidence on appeal also includes an updated 
organizational chart, which shows a number of changes in the Petitioner's staffing, including the 
change in position title from sales representative to sales assistant. However, given that this change 
went into effect in May 2017, it appears that the·chart applies to the time period following the filing 
of this petition and does not accurately retlect the Petitioner's facts and circumstances at the time of 
tiling. 
The Petitioner correctly observes that we must take into account the reasonable needs of the 
organization and that a company 's size alone may not be the only factor in determining whether the 
Beneficiary is or would be employed in a managerial or executive capacity. See section 
I 0 l (a)( 44 )(C) of the Act. However, it is appropriate for USC IS to consider the size of the 
petitioning company in conjunction with other relevant factors, such as the absence of employees 
who would pcrtorm the non-managerial or non-executive operations of the company or a company 
that does not conduct business in a regular and continuous manner. Family Inc. v. USCIS, 469 F.3d 
1313 (9th Cir. 2006); Systronic s Corp. v. iNS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). As previously 
discussed, the Petitioner has not provided sufficient reliable evidence to show that its organization 
was adequately staffed such that it could have s ~pported the Beneficiary as a personnel or function 
manager al the time of filing. 
Ill. EMPLOYMENT ABROAD 
Further, while not previously addressed in the Director's d-ecision, we find that the Petitioner did not 
submit sufficient evidence to resolve a critica l anomaly that was pointed out in the RFE with regard 
to the Beneficiary's employment abroad. According to the L Classificatio n Supplement, the 
Beneficiary was employed with the latter entity since May 2014. However, the J?irector noted in the 
RFE that rhe Beneficiary previously submitted two nonimmigrant visa applicati ons (N1Vs) in 2014 
and 20 I 5 both of which stated that was her foreign employer. The 
Director pointed out that the information that the Beneficiary provided in her two NIV applications 
is inconsistent with the Petitioner's current and previously submitted Form 1-129, Petition for a 
Nonimmigrant Worker, where it stated that the Beneficiary's employer abroad was 
The Petitioner was made aware of this 
inconsistency and instructed to provide evidence to resolve it. 
In response, the Petitioner provided a s tatement reiterating the claim it put forth in the L 
Classification Supplement. The Petitioner explained that while the Beneficiary was employed by 
when her first NIV application was completed, she was no longer employed 
by that entity in May 2015 and, instead, was a<;tually employed by the Petitioner's foreign parent 
entity when her second N[V application \.Vas completed. The Petitioner further claimed that the 
Beneficiary sought the assistance of a t ravel agency to help her complete both NIV applications, 
claiming that it was the travel agency, rather than the Beneficiary, that provided the incorrect 
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Maller of J-E- USA inc 
information on the second NIV application. We find, however, that the information in the 
Beneficiary's NIV application contradicts the Petitioner's most recent explanation. Namely, in 
response to the RFE, the Petitioner claimed that a travel agency, rather than the Beneficiary, 
provided the foreign employment information on the second NIV application; however. in the NIV 
application itself, the BeneEciary responded with a "no" when asked whether anyone assisted her in 
completing application. The Petitioner has not provided independent, objective evidence to resolve 
this inconsistency regarding the Beneficiary's employment abroad, which is critical to establishing 
eligibility tor the immigration benefit sought in this matter. Ho, 19 I&N Dec. at 591-92. 
Although we acknowledge the Petitioner's submission of English translations of the Beneficiary's 
purported tax voucher, pay stubs, and other such documents to corroborate its claim regarding the 
Beneficiary's employment abroad with the Petitioner's parent entity, we find that these foreign 
language documents do not meet the relevant regulatory criteria, which requires that any document 
in a foreign language must be accompanied by a properly certiEed English language translation. 
8 C.F.R. § l 03.2(b)(3). The translator must certifY that the English language translation is complete 
and accurate, and that the translator is competent to translate from the foreign language into English. 
ld Because the Petitioner did not submit a translator's certiEcate with any of the English language 
translations it offered- most notably, translations for the Beneficiary's pay and employment records 
- we cannot meaningfully determine whether the information offered in these documents is accurate 
and thus supports the Petitioner's claims. There tore, we find that the foreign documents do not 
overcome the inconsistencies that the Director originally noted in the RFE. 
As stated earlier, the Petitioner must establish that the BeneEciary was employment abroad by a 
qualifying entity, that such employment lasted for one continuous year, and that it took place within 
the three years that preceded the tiling of the instant petition. In the present matter, the Petitioner 
has not provided sufficient reliable evidence to establish that the BeneEciary was employed abroad 
by a qualifying entity for at least one year during the relevant three-year period. As this element is 
fundamental to establishing eligibility and the Petitioner has not met this threshold requirement, the 
Petitioner would remain ineligible tor the immigration benefit sought herein even if it provided 
sufficient evidence to overcome the Director's denial, which focused solely on the lack of evidence 
to support the claim pertaining to the Beneficiary's proposed employment with the U.S. entity. 
IV. DO!f'<G BUSINESS PRIOR TO FILING 
Lastly, while also not addressed in the Director's decision, we tind that the Petitioner has not 
provided sufficient evidence to show that it was doing business tor one year prior to filing this 
petition. 
The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) only allows a "new ofEce" operation one year within 
the date of approval of the petition to support an executive or managerial position. There is no 
provision in USClS regulations that allows for an extension of this one-year period as a new of1ice. 
l f a new ottice does not have the necessary staffing after one year to relieve a beneficiary from 
primarily performing operational and administrative tasks, a subsequent petition will be denied. As 
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Malter ''(.I-E-USA Inc 
discussed above, the Petitioner in this matter has not reached the point that it can employ the 
Beneficiary in a qualifying managerial position. 
Furthermore, the regulation at 8 C.F.R. § 214.2(l)(l4)(ii)(B) requires the Petitioner to demonstrate 
that it has been doing business for the previous year. The term "doing business" is defined in the 
regulations as "the regular, systematic, and continuous provision of goods and/or services by a 
qualifying organization and does not include .the mere presence of an agent or office of the 
qualifying organization in the United States and abroad." 8 C.F.R. § 214.2(1)(1 )(ii)(H). The instant 
petition was filed in April 2017 and describes itself as a primarily wholesale business that sells food 
products to restaurants. The Petitioner's RFE response includes a list of 14 companies that the 
Petitioner named as its clients. Although the Petitioner offered bank statements, a business lease, 
employment agreements, and documents showing that it paid wages in 2016, it did not provide 
invoices, shipping documents, or other such evidence to show that it has engaged in purchase and 
sales transactions on a regular. systematic, and continuous basis for one year prior to filing the 
instant petition. Therefore, the Petitioner has not established that it meets the applicable regulatory 
criteria with regard to doing business. 
V. 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 managerial capacity under an extended petition, that she 
was employed abroad by a qualifying entity for one year during the relevant three-year time period, 
or that the Petitioner has been doing business for the requisite duration prior to filing the instant 
petition. The appeal will be dismissed for these reasons. 
ORDER: The appeal is dismissed. 
Cite as Maller of.J-E-USA Inc, !D# 924947 (AAO Mar. 13, 2018) 
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