dismissed L-1A Case: Freight Transportation

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-L- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. I 8, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a freight transportation company, seeks to continue 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 10I(a)(15)(L), 8 U.S.C. § 1 I0l(a)(l5)(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 California Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that the Beneficiary would be employed in the United States in a 
managerial or executive capacity. 
On appeal, the Petitioner disputes the denial, stating that the Beneficiary would assume a function 
manager position in which he would establish the organization's goals and policies, make 
discretionary decisions, and be subject to only general supervision from the company's CEO, board 
of directors, and stockholders. -. 
Upon de nova review, we find that the Petitioner has not overcome the ground for denial. Therefore, 
we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 10l(a)(l5)(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 atl11iate thereof in a managerial or executive capacity.· Id. · 
Maller of F-l- Inc. 
II. MANAGERIAL OR EXECUTIVE CAPACITY IN THE UNITED STATES 
Although the Petitioner primarily claims that the Beneficiary would be employed in a managerial 
capacity, it refers to the Beneficiary as its "top executive" and claims that the proposed employment 
"is also executive in nature." We will address each claim in the discussion below. 
A. Managerial Capacity 
First, we will address the Petitioner's foremost claim that the Beneficiary will be employed in a 
managerial capacity under the extended petition. 
"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 
101(a)(44)(A) of the Act. 
The Petitioner claims that in addition to overseeing a staff of supervisory and professional 
employees, the Beneficiary would also manage an essential function. The term "function manager" 
applies generally when a beneficiary does not supervise or control the work of a subordinate staff but 
instead is primarily responsible for managing an "essential function" within the organization. See 
section 101(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 "(I) 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." Maller<![ G- Inc., Adopted Decision 
2017-05 (AAO Nov. 8, 2017). 
When examining the managerial capacity of a given beneficiary, we will review 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 
capacity. See 8 C.F.R. § 214.2(1)(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. 
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Maller<!/ F-L- Inc. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
l. Statling 
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 l0l(a)(44)(C) of the Act. 
The Petitioner claimed ten employees, including the Beneficiary, at the time this petition was filed in 
March 2018. The supporting evidence includes two payroll summaries and quarterly tax returns and 
wage reports for 2016 and 2017. It also includes an employee list, which names the Beneficiary's 
"direct reports," and an organizational chart, 1 which identifies ten positions that comprise the U.S. 
organization. The employee list indicates that six employees - the CEO and the heads of import, 
export, finance, international sales and marketing, and global customer service - are full_-time 
employees working 30 hours per week, while the remaining three employees - the assistant 
bookkeeper, overseas sales representative, and the assistant manager of custom house brokerage and 
transportation - work on a part-time basis. Although the employee list and organizational chart both 
depict ten employees, they are somewhat inconsistent, as the employee list indicates that the CEO 
and assistant bookkeeper both report to the Beneficiary as his subordinates, while the organizational 
chart indicates that the assistant bookkeeper directly reports to the head of finance and shows that the 
Beneficiary reports to the CEO, not the other way around. The Petitioner must resolve this 
discrepancy in the record with independent, objective evidence pointing to where the truth lies. 
Matter<~[ Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In a request for evidence (RFE), the Director made a preliminary finding that the Petitioner did not 
provide sufficient evidence to show that it is adequately staffed with full-time employees who would 
relieve the Beneficiary from having to carry out primarily non-qualifying job duties. The Director 
considered each employee's wages in light of the number of hours he/she worked and determined 
that several employees were not compensated the required minimum wage. The Petitioner was 
asked to provide evidence addressing these deficiencies. 
In response, the Petitioner provided a letter claiming that all of its employees are paid at least the 
California minimum wage and included an employee list similar in form to the one included in the 
initial cover letter. Like the original list, the new one also names the Beneficiary's nine "direct 
reports" and again includes the CEO in that list, which names the same six full-time positions and 
shows two personnel changes. The Petitioner stated that in addition to the nine subordinates, the 
Beneficiary oversees 1 I vendors and contractors. It provided a new organizational chart that reflects 
the t~o personnel changes, adding an accountant to the finance department and subtracting the 
1 The Petitioner provided a total of two organizational charts - the chart described above and one other chart listing eight 
employees. As only the ten-person chart is consistent with claims made in the petition. we will not address the eight­
person chart, which does not appear to reflect the Petitioner·s claims regarding its staffing structure at the time of filing. 
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Maller of F-L- Inc. 
assistant manager of custom house brokerage and transportation from the Petitioner's staffing 
hierarchy. We note that the chart did not include the 11 vendors and contractors that the Beneficiary 
is claimed to oversee. It is unclear why, if the Beneficiary would actually oversee contractors and 
vendors, it did not convey this information in any of its submitted organizational chaiis. This 
incongruity regarding the Beneficiary's subordinates, along with the incongruity regarding his 
organizational placement with respect to the CEO, must be resolved through the submission of 
independent, objective evidence. Id. 
In the denial decision, the Director again pointed to wages of several of the Petitioner's employees, 
finding that they were not consistent with those of full-time employment based on the federal 
minimum wage rates. The Director also found that the Petitioner did not establish that the 
Beneficiary will oversee the work of professional subordinates for whom a baccalaureate degree or 
higher is required to perform their job duties. 2 
On appeal, the Petitioner contends that the Director inco~ectly calculated the wages paid to its 
employees, claiming that the previously noted employee charts listed the maximum hours each 
employee is permitted to work, rather than the actually number of hours worked. It states that each 
employee worked less than their maximum permitted hours and that the wages reflect the number of 
hours each employee actually worked, thereby indicating that their wages are consistent with 
prevailing minimum wage requirements. The Petitioner provides 2017 payroll evidence to support 
this claim. 
We find that the documents provided are deficient because they contain only dates and wages, not 
the number of hours each employee actually worked during the indicated time periods. As such, we 
have no way of determining each individual's hourly rate, which is necessary in order to ascertain 
whether the rate meets federal and state wage requirements. Further, the submitted payroll evidence 
accounts for time periods that precede March 2018 and thus it does not address the time period when 
this petition was filed. The Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of the filing and continuing through 
adjudication. 8 C.F.R. § 103.2(b)(l ). 
The Petitioner also submits a personal declaration from its accountant, who claims to have prepared 
the Petitioner's payroll and other financial documents. The accountant claims to be "the individual 
that sets the employee payroll budget for the Petitioner allocating the MAXIMUM HOURS each 
employee is entitled to work during the fiscal year." (Emphasis as it appears in the original text). 
As with the Petitioner's own assertions, the claims put forth by the declarant must be supported with 
relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 
2010). Here, even if the statements in the declaration were proven to be true, the Petitioner has not 
I 
2 To detennine 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. C.Y. 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"). 
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Maller of F-l- Inc. 
provided evidence showing the actual number of hours each employee worked. As such, the 
Petitioner has not determined that the employees, who were claimed to be employed on a full-time 
basis, actually worked fewer than the maximum 30 hours. Further, even if the Petitioner provided 
evidence to show that certain employees actually worked fewer than 30 hours per week, as it now 
claims, this would undermine the Petitioner's original that most of its support staff is comprised of 
full-time employees. Moreover, the Petitioner would have to provide further evidence to show how, 
with a primarily part-time start: it would support the Beneficiary in a managerial position with 
primarily managerial 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 10I(a)(44)(A) and (8) of the Act (requiring that 
one "primarily" perform the enumerated managerial or executive duties); Matter f?/. Church 
Scientology Int 'I, 19 I&N Dec. 593, 604 (Comm'r 1988). 
In light of the anomalies and deficiencies described above, the Petitioner has not established that it 
has sufficient staffing to relieve the Beneficiary from having to primarily perform non-managerial 
job duties. 
2. Duties 
Based on the statutory 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). The Petitioner must also prove that the 
Beneficiary wifl 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. 
Accordingly, in order to establish eligibility, the Petitioner must provide a job description that 
clearly describes the duties to be perfonned by the Beneficiary and indicate whether such duties are 
in a managerial capacity. See 8 C.F.R. § 214.2(1)(3)(ii). 
In a supporting cover letter, the Petitioner stated that the Beneficiary would be employed as a 
function manager who "develops and directs the expansion of the activities of the U.S. subsidiary." 
The Petfrioner stated that the Beneficiary functions at a senior level with respect to the function, is 
the "influential final decision-maker" with respect to personnel matters, and is involved in training 
"a suitable work force" and recruiting and motivating employees. The Petitioner claimed that the 
Beneficiary manages an essential function, oversees the work of supervisory, professional, and 
managerial employees, and has authority over the company's day-to-day activities. 
In addition, the Petitioner provided a job duty breakdown stating that the Beneficiary would allocate 
his time as follows: 
• 30% of his time to directing "executives and [a] top level managerial team" to ensure they 
attain organizational goals; 
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Maller of F-L- Inc. 
• 20% to leading the company by making discretionary decisions that include prioritizing and 
delegating projects, managing '"the international logistics," and providing strategies to 
execute project tasks; 
• 10% reporting to the board of directors and shareholders; 
• 20% planning for future growth and hiring "'key managerial positions"; 
• 10% predicting future "[g]lobal industry developments" and changes; and 
• 10% representing the organization at international conferences. 
The RFE indicated that the Petitioner provided a deficient job description and did not adequately 
delineate the Beneficiary's day-to-day job duties as president of the organization or establish the 
percentage of time he would spend performing non-managerial job duties. 
In response, the Petitioner provided a letter again claiming that the Beneficiary will manage its 
"major components and functions" and oversee supervisory and professional employees. The 
Petitioner also provided a new job duty breakdown indicating that the Beneficiary would allocate 
25% of his time to motivating a "management team" and supervising and coaching employees who 
comprise that team to focus on target markets, provide good customer service, and "overcome the 
day[-]to[-]day obstacles." The Petitioner's reference to a "management team" is unclear, however, 
given that its staffing structure shows only one supervisory employee at the time this petition was 
filed. Despite the position titles assigned to the Beneficiary's subordinates, the Petitioner did not 
provide sufficient evidence to establish that the employees who are designated as department heads 
have their own subordinates such that they could be collectively deemed as being part of a 
"management team." Likewise, the Petitioner's claim that the Beneficiary would spend I 0% of his 
time identifying "individuals from key performance index (KPI) for future projects" is also unclear, 
as the Petitioner did not define what is meant by "key performance index" or identify specific 
"projects" within the context of its freight transportation organization. 
The Petitioner also stated that the Beneficiary would spend 5% of his time observing "the business 
activity" and doing market comparisons, 10% organizing departments to meet their respective goals, 
10% planning future goals and strategies, and 20% making discretionary decisions and receiving 
updates "from local and international markets." Although these job duties indicate that the 
Beneficiary has a degree of discretionary authority that is characteristic of someone employed in a 
managerial capacity, they do not convey a meaningful understanding of the specific underlying tasks 
the Beneficiary would execute as part of his daily activity. 
On appeal, the Petitioner refers to the occupational information found in O*Net and the 
Occupational Outlook Handbook (OOH) to support its claim that the Beneficiary's position is within 
a managerial capacity. We find, however, that the petitioner's reliance on the general descriptions 
found in these sources is misplaced, as neither source contains provisions that take into account the 
statutory and regulatory requirements that are relevant in this matter. Specifically, the Petitioner is 
subject to section 101(a)(44)(A) of the Act as well as the definitions and provisions found in 
8 C.F.R. § 214.2(1). Both statutory and regulatory provisions require the Petitioner to establish that 
the Beneficiary's proposed employment would be primarily in a qualifying manageriai capacity. By 
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Maller of F-L- Inc. 
regulation the Petitioner must provide a detailed description of the Beneficiary's proposed job duties 
in order to facilitate an accurate understanding of the proposed employment and allow for a proper 
determination as to whether it meets statutory and regulatory guidelines. 8 C.F.R. § 214.2(1)(3)(ii). 
Simply meeting general guidelines set out in O*Net or the OOH is not sufficient. 
In whole, the Beneficiary's management of the business 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. As noted earlier, eligibility for this classification requires that the duties of 
a position be "primarily" managerial in nature. Section 101(A)(44)(A) of the Act. While the 
Beneficiary may exercise discretion over the Petitioner's daily operations and possess the requisite 
level of authority with respect to discretionary decision-making, these elements alone are not 
sufficient to establish that his actual duties would be primarily managerial in nature. The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co .. Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), a.f{"d, 905 F.2d 41 (2d. Cir. 1990). As such, a detailed job 
description is critical to a determination of whether the Beneficiary would be employed in a 
managerial capacity. Here, the record lacks a detailed job description that adequately delineates the 
Beneficiary's specific tasks based on the Petitioner's staffing and scope of operations at the time of 
filing. 
Furthermore, the Petitioner conflates the requirements for personnel and function manager without 
providing sufficient evidence to demonstrate that the Beneficiary falls within either category. As 
previously noted, in order to establish that the Beneficiary would assume the position of a function 
manager, the Petitioner must first describe the function to show that it is "a clearly defined activity." 
Maller of G- Inc., Adopted Decision 2017-05. Here, the Petitioner broadly states that the 
Beneficiary "develops and directs the expansion" of its activities in the United States without 
adequately describing a specific function or component of the U.S. organization that the Beneficiary 
would manage. Further, whether a beneficiary is an "activity" or "function" manager turns in part 
on whether the Petitioner has sustained its burden of proving that the duties of that beneficiary are 
"primarily" managerial. See lvfaller ofZ-A-, Inc., Adopted Decision 2016-02 {AAO Apr. 14, 2016). 
As discussed above, the Petitioner has provided a deficient job description that neither defines an 
essential function, nor conveys an understanding of how the Beneficiary would go about managing 
the function. Likewise, the deficient job description, coupled with insufficient evidence of adequate 
staffing, also precludes us from finding that the Beneficiary would oversee a staff that is comprised 
of supervisory, professional, or managerial subordinates. 
B. Executive Capacitx 
Even though the Petitioner primarily claims that the Beneficiary would be employed in a managerial 
capacity, it confusingly incorporates a paraphrased definition of executive capacity, claiming that the 
Beneficiary "is responsible for directing" the Petitioner's major components, establishing it~ goals 
and policies, exercising wide latitude in discretionary decision making, and receiving only general 
oversight from superiors. Section 101 (a)( 44)(8) of the Act. 
7 
lvlatter of F-l- Inc. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components· or functions of the 
organization, and that person's authority to direct the organization. Section I0l(a)(44)(8) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and they must primarily focus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial 
employee. A beneficiary must also exercise "wide latitude in discretionary decision making" and 
receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." ·1d. · 
Here, the Petitioner has not adequately articulated the Beneficiary's job duties or provided evidence 
establishing that he would primarily direct the management of the U.S. organization. 
III. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that the Beneficiary 
will be employed in a managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of F-l- Inc., ID# 1948082 (AAO Dec. 18, 2018) 
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