dismissed L-1A Case: Fragrance Distribution

U.S. Citizenship 
and Immigration 
Services 
In Re: 7052395 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 8, 2020 
PETITION: Form I-129, Petition for L-lA Manager or Executive 
The Petitioner intends to operate as a distributer of fragrances used in detergent, perfumes, and room 
fresheners. It seeks to temporarily employ the Beneficiary as marketing manager of its new office 1 
under the L-lA nonimmigrant classification for intracompany transferees who are coming to be 
employed in the United States in a managerial or executive capacity. Immigration and Nationality 
Act (the Act) section 101(a)(15)(L) , 8 U.S.C. § 1101(a)(15)(L). 
The Director of the Texas Service Center denied the petition concluding that the Petitioner did not 
establish, as required , that: (1) it had secured sufficient business premises to house its operation; 
(2) the Beneficiary was employed abroad in a managerial or executive capacity; and (3) the new office 
would support the Beneficiary in a managerial or executive position within one year of approval of 
the instant petition . The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C . § 1361. Upon de novo review, we find that the Petitioner provided 
sufficient evidence showing that it had secured sufficient physical premises to house its new office as 
of the date this petition was filed and we will therefore withdraw that ground as a basis for denial. 
However, the Petitioner did not establish that the Beneficiary was employed abroad in a managerial 
or executive capacity. Therefore, we will dismiss the appeal and, because of the dispositive effect of 
this finding, we will reserve the remaining issue . 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimrnigrant visa classification in a petition involving a new 
office , a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 8 C.F.R. § 214.2(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. 
1 The term "new office" refers to an organization which has been doing business in the United States for less than one year. 
8 C.F.R. § 214.2(1)(1 )(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no more than 
one year within the date of approval of the petition to support an executive or managerial position . 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and scope 
of the entity, its organizational structure, its financial goals, and the size of the U.S. investment. See 
generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Petitioner claims that the Beneficiary's employment abroad was in a managerial capacity. As the 
Petitioner does not claim that the Beneficiary was employed in an executive capacity, we will not 
address that issue and will limit our discussion to the Petitioner's claim that the Beneficiary was 
employed in a managerial capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(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. 
Section 10l(a)(44)(A)(ii) 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)(l)(ii)(B)(3). 
On the other hand, the term "function manager" applies generally when a beneficiary does not 
primarily 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). 
A. Duties 
In order to determine whether the Beneficiary's employment abroad was that of a function manager, 
we will first discuss the duties he performed during his period of employment with the foreign entity. 
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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), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
In a supporting cover letter the Petitioner stated that the Beneficiary has played a "critical role" in 
heading the marketing of the foreign entity's fragrance products and implementing company policies 
and objectives in the course of managing a "major function" at an "executive level." Although the 
Petitioner provided a job duty breakdown stating that the Beneficiary allocated 40% of his time to 
"marketing matters" and providing "marketing consultancy for market exportation," it did not specify 
which job duties are entailed in "marketing matters" or explain how providing marketing consulting 
services qualifies as a managerial, rather than an operational, task. Likewise, the Petitioner did not 
establish that networking and seeking out potential business partners, to which the Beneficiary is 
claimed to have allocated 20% of his time, qualifies as a managerial-level job duty. The Petitioner 
also stated that 30% of the Beneficiary's time was spent supervising exports and sales in the Asia­
Pacific and African markets, but it did not explain how he supervises these functions. The Petitioner 
stated that the remaining 10% of the Beneficiary's time was allocated to negotiating contract terms 
and managing staff. Here too, however, the Petitioner did not specify the actual job duties involved 
in managing staff or establish that contract negotiation is a managerial job duty. 
Although the Beneficiary need not allocate all of his time to managerial job duties, 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. In order to make a distinction between duties that are 
managerial and those that are not, the Petitioner must provide a job description that lists the 
Beneficiary's actual job duties. Specifics are clearly an important indication of whether a beneficiary's 
duties are primarily executive or managerial in nature, otherwise meeting the definitions would simply 
be a matter of reiterating the regulations. Id. 
In a request for evidence (RFE) the Director asked the Petitioner to provide a letter from an authorized 
representative of the foreign entity identifying the Beneficiary's typical managerial duties and the 
percentage of time he devoted to each duty. The Petitioner was asked to explain how the Beneficiary's 
position and job duties fit the statutory definition of managerial capacity and to provide evidence 
demonstrating that the Beneficiary managed an essential function and occupied a top-level position 
with respect to that function if claiming that the Beneficiary assumed a function manager role. 
In a response letter, the Petitioner stated that the Beneficiary "directs and manages a critical 
component" of the foreign organization and identified the "critical component" as "all marketing 
matters including sales and exports within the Asia-Pacific and Africa." The Petitioner also provided 
a letter from the foreign entity's director who restated the original job duty breakdown and claimed 
that the Beneficiary has discretionary authority over "all marketing and sales aspects of the 
organization," including the sales and marketing staff: which consists of an assistant marketing 
manager and his two subordinate sales representatives. The letter focuses on the Beneficiary's "vast 
knowledge and experience" in marketing industrial fragrances and points to his "intimate experience" 
with the foreign entity's products, but it does not include a more detailed job duty breakdown or further 
describe the "critical component" the Beneficiary is said to manage. 
In denying the petition, the Director found that the information offered in the Petitioner's supporting 
statement and subsequent RFE response was not sufficient to allow for an understanding of the 
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Beneficiary's actual tasks. The Director therefore determined that the Petitioner did not adequately 
demonstrate that the Beneficiary was employed abroad in a managerial capacity, as claimed. 
On appeal, the Petitioner argues that the Director did not conduct a proper analysis of the evidence 
and points out that the Beneficiary manages the marketing and sales function, which is deemed "most 
critical" to the organization because it is responsible for 90% of the foreign entity's sales in Asia­
Pacific and Africa. Although we find that the Petitioner has established that sales and marketing is a 
clearly defined activity that is essential to the organization, it has not clearly described the duties the 
Beneficiary performed in managing this essential function. Rather, the Petitioner provided a vague 
job description, which grouped together certain job duties, such as "marketing matters" and 
"marketing consultancy for market exportation" or staff management and contract negotiation, without 
indicating precisely how much time the Beneficiary allocated to each individual job duty. The 
Petitioner also did not establish that providing consulting services on the subject of market exportation 
should be deemed as a managerial task. Likewise, without further information, we do not find that 
seeking out potential business partners and engaging in contract negotiation can readily be deemed 
managerial-level job duties. 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 managerial or executive duties); Matter of Church Scientology Int'!., 19 I&N 
Dec. 593, 604 (Comm'r 1988). 
Further, merely stating that the Beneficiary is responsible for "marketing matters" is insufficient, as it 
is unclear what constitutes "marketing matters" or which daily tasks the Beneficiary executed to meet 
his responsibility regarding "marketing matters." The Petitioner also highlights the Beneficiary's 
discretionary authority over "all marketing and sales aspects," including the company's marketing 
goals and policies as well as its sales and marketing staff However, the Beneficiary's discretion over 
the company's day-to-day marketing operations and the requisite level of authority with respect to 
discretionary decision-making over the marketing function does not necessarily establish eligibility 
for classification as an intracompany transferee in a managerial capacity within the meaning of section 
10l(a)(44)(A) of the Act, unless the Petitioner establishes that the tasks performed were "primarily" 
managerial in nature. In other words, without a detailed description of the Beneficiary's job duties we 
are unable to ascertain how the Beneficiary managed the sales and marketing function or that the duties 
performed were primarily managerial in nature. 
The Petitioner also stresses that the Beneficiary's management of the sales and marketing function has 
positively affected the company's growth in sales and contends that the Beneficiary controls the 
marketing staff even though he assumes the role of a function manager and is not required to manage 
personnel in order to meet the statutory criteria for managerial capacity. We note, however, that aside 
from indicating that the Beneficiary allocated less than 10% of his time to managing "all stafflevels," 2 
the Petitioner did not list any personnel management tasks that would explain precisely how he 
managed the sales and marketing staff in the course of managing the sales and marketing function. 
The Petitioner also did not provide supporting evidence, such as performance evaluations or other 
2 The Petitioner indicated that 10% of the Beneficiary's time is distributed among two distinct job duties - negotiating 
contracts and managing personnel - and is not entirely allocated to either job duty. As the Petitioner did not assign a time 
allocation to job duty, it is unclear how much of the 10% is specifically devoted to personnel management duties. 
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personnel actions, to support the claim that the Beneficiary controls the work of the foreign entity's 
sales and marketing staff The Petitioner must support its assertions with relevant, probative, and 
credible evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
Further, with respect to the Petitioner's reliance on our unpublished decisions to establish that the 
Beneficiary was a function manager in his position with the foreign entity, we note that 8 C.F.R. 
§ 103 .3( c) only provides that our precedent decisions are binding on USCIS; unpublished decisions 
are not similarly binding and therefore do not have the effect of mandating the outcome in this instance. 
Although the Petitioner is correct in stating that a function manager need not manage personnel to 
meet the definition of managerial capacity, it must adequately support its claim by providing a 
description of daily duties that 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). Here, the Petitioner has provided a deficient job description which, aside from lacking 
critical information about the Beneficiary's actual daily tasks, indicates that the Beneficiary spends an 
unknown portion of his time performing certain non-managerial job duties, including providing 
marketing consulting services, seeking out business partners, and engaging in contract negotiations. 
As several of the Beneficiary's tasks were together in the job duty breakdown, it is unclear precisely 
how much time the Beneficiary devoted to consulting and contract negotiation. That said, without 
further evidence showing otherwise, it is possible that the total time spent performing these non­
managerial job duties may have consumed the primary portion of the Beneficiary's time, thereby 
precluding the Beneficiary from "primarily" performing managerial-level tasks. 
In sum, while the Petitioner stresses the Beneficiary's high level of discretionary authority and his 
critical role with respect to the sales and marketing function, the job duty breakdowns provided in 
support of this petition do not adequately detail the daily tasks the Beneficiary performed during his 
employment with the foreign entity. Therefore, despite the Beneficiary's level of authority over a 
critical function, we cannot conclude that the job duties he performed were primarily managerial. 
B. Staffing 
In addition to the above analysis, we also examine the staffing of the employing organization. If 
staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we take into account the reasonable needs of the organization in light of the overall purpose 
and stage of development of the organization. See section 101 (a)( 44 )( C) of the Act. 
The Petitioner's supporting evidence includes the foreign entity's organizational chart showing a 
board of directors at the top of the hierarchy, followed by a managing director overseeing five 
departments. The Beneficiary is depicted as head of the sales department with a "sales" position as 
his direct subordinate. 
In the RFE response, the Petitioner provided a similar organizational chart, again showing an assistant 
marketing manager as the Beneficiary's direct subordinate, but changing the department name from 
"Sales" to "Marketing and Sales" and adding two sales representatives below the assistant marketing 
manager's position. The response did not include a discussion of the positions within the Beneficiary's 
department or describe the job duties that were assigned to these positions. Although the chart 
included the names and position titles of the three employees in the Beneficiary's department, this 
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information is not sufficient to convey an understanding of the respective employees' roles within the 
department or the job duties they performed. In order to properly support the claim that the Beneficiary 
managed the sales and marketing function, it is helpful to know the underlying duties of that function 
as well as who performed those duties. Such evidence allows us to gauge the likelihood that the 
foreign entity had the necessary staffing to ensure that the Beneficiary's time spent performing the 
operational tasks associated with the essential function was limited and only incidental, rather than the 
primary portion of: his position abroad. Here, however, the record lacks this critical information. As 
noted earlier, the Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Chawathe, 25 I&N Dec. at 376. 
In the present matter, the record contains numerous critical evidentiary deficiencies that preclude a 
meaningful and comprehensive understanding of the Beneficiary's job duties and the job duties 
performed by those intended to support the Beneficiary's function and relieve him from having to 
primarily perform the duties of that function. As such, we cannot conclude that the Beneficiary was 
employed abroad in a managerial capacity. 
ORDER: The appeal will be dismissed. 
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