dismissed L-1A Case: Freight Forwarding And Logistics

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-E- CORP. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 20. 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. an international freight forwarding and logistics services company. seeks to temporarily 
employ the Beneficiary as the chief executive officer of its new otlicc 1 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. § 1101(a)(15)(L). TheL-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 Vermont Service Center denied the petition. concluding that the Petitioner did 
not establish, as required, that the new office would support a managerial or executive position within 
one year of approval of the petition. 
On appeal, the Petitioner asserts that the evidence establishes that the Beneficiary will be employed 
in a managerial capacity within one year and will supervise subordinate professional employees. 
The Petitioner maintains that the Director did not give sufficient \veight to the company's business 
plan and the Beneficiary's detailed duty description. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification for a new oftice. 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 seck 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. Section I 0 I (a)(15)(L) of the 
Act. The petitioner must also establish that the beneficiary's prior education. training. and 
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(l)(l)(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. 
Matter of E-E- Corp. 
employment qualifies him or her to perform the intended services in the United States. 8 C.F.R. 
§ 214.2(1)(3). 
If the Form 1-129, Petition for a Nonimmigrant Worker, indicates that the bene1iciary is coming to 
the United States in L-IA status to open or to be employed in a new office. 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 general(v. 
8 C.F.R. § 214.2(1)(3)(v). 
"Managerial capacity'' means as 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 
101(a)(44)(A) ofthe Act. 
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) takes into account the 
reasonable needs of the organization, in light o(the overall purpose and stage of development of the 
organization. See section 10l(a)(44)(C) ofthe Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director determined that the Petitioner did not establish that its new office would he able to 
support a managerial position within one year of approval of the petition. 2 
The Director acknowledged the submitted position description. but found that the Petitioner's 
business and hiring plans indicated that the Beneficiary would be a tirst-1 inc supervisor of three non­
professional employees within one year, and would not be performing primarily managerial duties. 
The Director also determined that the Beneficiary's subordinates would not he performing 
managerial or supervisory duties within one year. 
On appeal, the Petitioner asserts that it satisfied all requirements for a new otlice and contends that 
the Director did not consider the company's reasonable needs when addressing its projecting staffing 
levels. The Petitioner claims that the Beneficiary will he managing three professional employees 
and the overall operations of the new company and meets all criteria for employment in a managerial 
capacity. 
2 
The Petitioner claims that the Beneficiary will be employed in a managerial capacity and does not make an alternative 
claim that the Beneficiary would be employed in an executive capacity. 
2 
Matter of E-E- Corp. 
A. Business Plan and Projected Staffing 
In the case of a new oflice petition, beyond the description of a beneficiary" s proposed job duties. we 
review the petitioner's business and hiring plans and evidence that the business will grow 
sufficiently to support a beneficiary in the intended managerial or executive capacity. A petitioner 
has the burden to establish that it would realistically develop to the point vvhere it would require the 
beneficiary to perform duties that are primarily managerial or executive in nature within one year. 
Accordingly, the totality of the evidence must be considered in analyzing whether the proposed 
managerial or executive position is plausible considering a petitioner·s anticipated staffing levels and 
stage of development within a one-year period. See 8 C.F.R. ~ 214.2(1)(3 )(v)(C). 
The Petitioner intends to operate an international cargo freight forwarding and logistics business. rt 
states that it will act as a third party logistics company providing integrated supply chain solutions 
including warehousing, forwarding, packing, consulting, and brokerage and transportation 
documentation. According to its business plan. the Petitioner's day-to-day operations vvill entail. in 
part, the following: 
[B]ooking cargo space with carriers, negotiatmg rates, arranging insurance. 
calculating the weight, volume and cost of goods to be moved. preparing quotations. 
invoices, bills of lading and letters of credit and keeping extensive records of all 
transported products. We also will be involved in acting as freight consolidators. 
buying bulk cargo space on trucks, ships and airlines and resell it at a higher rate. 
Part of our business as customs brokers will be clearing goods through international 
customs on behalf ofan importing or exporting business. Our key responsibilities 
will including preparing documents; submitting information electronically; paying 
taxes, duties and excises on behalf of our customers and facilitating communication 
among the shipper. receiver and government agencies. 
The Petitioner stated that it had already hired an administrator with an annual salary of $12.000 and 
expected to hire a business development manager and an air freight manager before the end of its 
initial year of operations. The Petitioner contends that the Beneficiary will qualify as a personnel 
manager as he will perform primarily managerial duties and will allocate 60 percent of his time to 
recruiting and supervising subordinate professional employees. 
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. 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 101 (a)( 44 )(A) of the Act. If a petitioner claims that 
a beneficiary directly supervises other employees, those subordinate employees must be supervisory. 
professional, or managerial. and the beneficiary must have the authority to hire and fire those 
employees, or recommend those actions. and take other personnel actions. Sections 
101(a)(44)(A)(ii)-(iii) ofthe Act. 
3 
Matter (?fE-E- Corp. 
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 I 0 I (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... Therefore. we must focus on the level of 
education required by the position, rather than the degree held by a subordinate employee. 
The Petitioner initially stated that the business development manager position would require at least 
a bachelor's degree and would be responsible for business development planning, screening 
potential business deals, closing new business deals. researching and executing sales leads. and 
mentoring and directing managers and stafl. It described the role as a "senior sales position" that 
works with the "internal team, marketing staff and other sales positions within the company... In 
response to a request for evidence (RFE) issued by the Director. the Petitioner added 17 '"allied 
functions" to its initial job description for this position. These functions include "working with 
logistics engineers in development of Resource Planning," undertaking '"regional presentations l()r 
the Contract Logistics Division,'' and maintaining "close working relationships with the Customer 
Service, Operations and Contract Logistics team ... 
Overall, the revised job description for this position included multiple references to employees. 
departments, divisions, and teams that will not exist within the Petitioner's organization during its 
first year of operations. Therefore, the probative value of the job description tor this position is 
limited. Given the projected three-person support staff expected to be in place by the end of the 
initial year, it is reasonable to conclude that this employee will be engaged in sales activities and will 
not be performing supervisory or managerial tasks. 3 The Petitioner has not supported its claim that a 
bachelor's degree is required to perform sales duties in this field. and therefore has not shown that 
the business development manager will be a professional position. 
With respect to the "administrator" position, the Petitioner stated that it is a full-time position 4 
requiring a bachelor's degree. The Petitioner stated that this employee will provide planning 
assistance, ofiice and facility management, produce and organize correspondence. maintain office 
supply inventory, arrange meetings and conferences, ''provide administrative support to different 
teams of the company," and generally oversee the ''internal/support" operations of the company. In 
response to the RFE, the Petitioner added approximately 30 ··allied functions" to the original job 
description tor this position. As with the additions to the business development manager job 
description, many of the newly assigned duties appeared to be inconsistent with the nature of the 
Petitioner's business and its proposed business plans. and therefore. the expanded job description has 
little probative value. For example, the Petitioner stated that the administrator will ··oversee day-to-
3 
The business plan shows no projected subordinates for the business development manager in the Petitioner·s tlrst three 
years of operation. 
4 
The Petitioner claims in its letters that it will pay the administrator a $36.000 annual salary, but also indicated it already 
filled the position with an unidentified worker who earns $12,000 annually. The business plan also indicates a starting 
salary of $12,000 for this position. Therefore. it appears that this is not actually a full-time po~ition. 
4 
Matter of E-E- Corp. 
day operations of finished goods and raw material warehouse:· ·'manage a staff of approximately 38 
with four direct reports," oversee warehousing activities. and coordinate "warehousing execution for 
divisional strategies.'' The description provided in response to the RFE appears to describe a 
warehouse manager position for a large, established company. not an administrative position vvithin 
the Petitioner's start-up company. 
In fact, the record otherwise indicates that the administrator position has no projected subordinates 
for the first year or beyond and the position appears on the organizational chm1 as an assistant to the 
CEO. Therefore, this is not a managerial or supervisory position. Due to the inconsistencies and 
obvious inaccuracies in the submitted job description. we cannot determine what this employee will 
actually do and cannot conclude that the administrator would be a professional employee. Further. 
we note that the Petitioner stated that it already filled the position. but it did not identify the 
individual hired or provide evidence of his or her educational credentials in support of its claim that 
a bachelor's degree is required. 
Finally, the Petitioner indicates that the airfreight manager position is full-time. requires a 
Bachelor's degree, and is responsible for "all the export/export airline haul rate management"' 
activities ofthe company. 5 The Petitioner stated that the position will be publishing and selling day­
to-day airfreight rates, maintaining business-to-business clients. drafting agent/airline/CrSA 
contracts, and preparing competitor rate comparisons. In response to the RFE. the Petitioner listed 
additional ''allied functions" which would include training and coaching team members. motivating 
teams, and a number of other supervisory tasks, despite the fact that this employee will not supervise 
any employees in the first year of operations. As with the other subordinate positions. the record 
does not establish that this employee will be a manager or supervisor. nor is there sufficient 
information to support the Petitioner's claim that the position requires a bachelor"s degree. 
Therefore, we agree with the Director's conclusion that the Beneficiary's supervisory duties. which 
would require more than half of his time. would not be those of a personnel manager who oversees a 
subordinate staff of managerial, supervisory, or professional employees. 
We agree with the Petitioner's argument that a company's size alone may not be the determining 
factor in denying an L-1 A visa petition without taking into account the reasonable needs of the 
organization. See section 10l(a)(44)(C) of the Act. However, it is appropriate for USClS to 
consider the size of the petitioning company in conjunction with other relevant factors. such as the 
absence of employees who would perform the non-managerial or non-executive operations of the 
company. Family Inc. v. USCJS, 469 F.3d 1313 (9th Cir. 2006): 5t~vstronics Corp. r. INS. 153 F. 
Supp. 2d 7, 15 (D.D.C. 2001). 
During its initial year of operations, the Petitioner plans to fill three positions. at least one of which, 
the administrator, appears to be a part-time position. As noted, the Petitioner's business plan 
provided a fairly detailed explanation of what its day-to-day operations will entail. Many of the 
5 
The Petitioner stated in its support letter that it will pay the airfreight manager a $42.000 annual salary. The 
Petitioner's business plan indicates that the statiing salary will be $30,000 with small, incremental increases. 
5 
Matter qf E-E- Corp. 
operational duties related to the provision of logistics, transportation, customs. and other services 
that have not been assigned to any of the proposed employees. As such. we cannot conclude that the 
Beneficiary would be relieved from significant involvement in the day-to-day operations within the 
first year of operations. Further, as discussed, the Petitioner's job descriptions for the subordinate 
employees, while very lengthy, included information that clearly did not apply to this company. 
making it difficult for us to discern what the subordinates will actually do within the context of this 
business. The Petitioner must resolve these incongruities in the record with independent, objective 
evidence pointing to where the truth lies. Matter ofHo. 19 I&N Dec. 582. 591-92 (BIA 1988). 
The Petitioner's response to the RFE included two agency agreements with other freight forwarders. 
The Petitioner explained that it would "share"' warehousing. trucking, air cargo. and ocean freight 
services with these companies, and stated that these agreements would "ensure clients can request 
service in different states.·· The Petitioner did not indicate or establish that these agents would take 
the place of lower-level employees or wholly provide the services of the company. Moreover. the 
Petitioner's business plan does not indicate that the company intends to provide its services through 
a series of agency arrangements. On appeal, the Petitioner does not offer further explanation as to 
how these agents would assist the company in supporting a managerial position. 
Finally, we note that the Petitioner emphasizes on appeal that the Director did not consider the 
business plan and notes that new employees would be hired in the second year of operations and 
beyond. As noted, the new office regulations allow the Petitioner no more than one year to grow to 
the point where it can support a managerial position; any proposed hiring that may occur after that 
initial year has no bearing on the adjudication of this petition. 
As discussed further below, the Petitioner's description of the Beneficiary's duties, considered in 
light of the staffing and business plans, does not establish that he would perform primarily 
managerial duties within one year. Even though the Beneficiary would hold a senior position within 
the organization, the fact that the Beneficiary will manage a business and supervise subordinate 
employees does not necessarily establish eligibility for classification as an intracompany transferee 
in a managerial capacity. By statute, eligibility for this classification requires that the duties of a 
position be "primarily'" managerial in nature. Sections IOI(A)(44)(A) ofthe Act. 
B. Duties 
The Petitioner has consistently claimed that the Beneficiary will allocate his time follows: (I) 60% 
to hiring and supervising a professional team; (2) 20% to day-to-day management and 
administration; (3) 10% to mission, policy and planning; and ( 4) 10% to overseeing financial 
planning. 
As discussed, the largest portion of his time would be allocating to overseeing three personnel. but 
the Petitioner has not established that these employees will be managers, supervisors, or 
professionals and therefore has not shown that this large portion of his time would be spent 
performing qualifying managerial duties. If the Beneficiary will be primarily spending his time 
Matter of E-E- Corp. 
overseeing non-professional subordinates, then he will not be primarily performing managerial 
responsibilities within one year. 
The remainder of the job description conveys the Beneficiary's senior position in the company. but 
describes his proposed role in very general terms that provide little insight into what he would 
actually do on a day-to-day basis by the end of the initial year of operations. For example. the 
Petitioner has assigned duties such as "build a program on quality and organizational stability 
through implementation of standards and controls. systems and procedures": .. developments in 
human services. management. and governance, philanthropy and fund development": .. develop and 
evaluate Company's relevancy in the community'': and "communicate the market trend on fund 
application towards logistic technology and innovation time to time." These types of descriptions do 
not provide a clear picture of the nature of the Beneficiary's proposed 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. 
Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989). affd. 905 F.2d 41 (2d. Cir. 
1990). 
The Petitioner has consistently stated that the Beneficiary will occupy the senior position in the new 
office, but has not submitted a job description or supporting evidence sutlicient to demonstrate that 
he would primarily engage in managerial duties, or that the new office would support a managerial 
position, after the initial year of operations. 
III. CONCLUSION 
The Petitioner has not established that it will employ the Beneficiary in a managerial capacity within 
one year. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-E- Corp., 10# 756869 (AAO Nov. 20. 20 17)