dismissed L-1A Case: Herbal Tea Distribution

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-C-1- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY7,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which intends to import and distribute herbal tea, seeks to temporarily employ the 
Beneficiary as chief executive ofticer (CEO) of its new oftice 1 under the L-1 A nonimmigrant 
classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 
IOI(a)(IS)(L), 8 U.S.C. §I IOI(a)(IS)(L). TheL-IA classification allows a corporation or other legal 
entity (including its aftiliate 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 it would be able to support a managerial or executive position within one 
year of approval of the petition . 
. On appeal, the Petitioner asserts that the Director did not consider all of the submitted evidence and 
failed to apply the preponderance of the evidence standard to the facts presented. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L- I A nonimmigrant 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 tor 
admission into the United States. 8 C.F.R. § 2 14.2(1)(3)(v)(B). In addition, the beneficiary must 
seek to enter the United States tef!1porarily to continue rendering his or her services to the same 
employer or a subsidiary or aftiliate thereof in a managerial or executive capacity. !d. 
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 
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)(J)(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 ~xecutive or managerial position. 
Mal/er of R-C-1- Inc. 
scope of the entity, its organizational structure, its financial goals, and the s1ze of the U.S. 
investment. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. DEFINITIONS 
"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 !unction for which the employee has authority. Section 
101(a)(44)(A) of the Act. 
The term "executive capacity" is defined as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function of 
the organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section IOI(a)(44)(B) of the Act. 
Based on the definitions of managerial and executive 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 or executive duties, as opposed to ordinary 
operational activities al01,1gside 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. 
Ill. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner established that the new otlicc would support 
a managerial or executive position within one year of approval of the petition. 
In the case of a new office petition, we review a beneficiary's proposed job duties as well as the 
petitioner's business and hiring plans and evidence that the business will grow sutliciently to support 
a beneficiary in the intended managerial or executive capacity. A petitioner has the burden 1 to 
establish that it would realistically develop to the point where it would require the beneficiary to 
pertunn 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 starting levels and stage of 
development within a one-year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
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Mauer of R-C-1- Inc. 
A. Duties 
The Petitioner states that it will import and distribute herbal teas produced by its Chinese aftiliate. It 
described the Beneficiary's proposed duties as CEO as follows: 
• Managing and directing the day-to-day operations of the company (60%); 
• Reviewing the VP-marketing's proposals concerning (i) the strategy and plans tor 
market . development; (ii) the management of significant accounts; (iii) the 
negotiation with significant distributors ... ; and (iv) the reviewing and signing 
[of] contracts ( 15% ); · 
• Developing strategy and policies to cooperate with the affiliated Beijing company 
and other suppliers in China (15%); 
• Hiring and firing departmental managers, sales leads, import professionals; 
reviewing their performances, and review the managers' proposals for hiring and 
terminating onice clerks, assistants or independent contractors (5%); 
• Review the reports from the manager in charge of flnance, HR, bookkeeping and 
personnel training (5%). 
This description is overly broad as it does not list the specific tasks the Beneficiary would perform in 
"managing and directing the day-to-day operations of the company." Because the Petitioner 
indicates that that this responsibility will require the majority of her time, it did not provide 
sufficient information to establish how her tasks would be primarily managerial or executive in 
nature. The listed responsibilities also appear to project beyond the duties the Beneficiary would 
perform by the end of the first year of operations, as the record does not indicate that the Petitioner 
would be hiring sales leads, import professionals, clerks, or assistants during that initial year. 
The Petitioner's business plan included a lengthier description of the Beneficiary's proposed duties, 
but did not include the approximate percentage of time she would allocate to the listed 
responsibilities on a daily basis. Further, although the description lists 26 duties, many of them are 
generaL repetitive, and appear to simply paraphrase the statutory deflnitions of managerial and 
executive capacity. For example, the description indicates that the Beneficiary will ensure the 
business is running smoothly, set and implement the company's strategic direction, develop its goals 
and policies, plan and implement policies and objectives, develop annual business objectives, 
"strategically lead the company," implement company policies and procedures, "oversee operational 
aspects of the business," oversee all departments, "ensure business is operating smoothly," and 
"develop innovative and strategic business strategies." Conclusory assertions regarding the 
Beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute 
or regulations does not satisfy the Petitioner's burden of proof. Fedin Bros. Co .. Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Assocs .. Inc. v. 
Meissner, 1997 WL 188942 at * 5 (S.D.N.Y.). Here, the Petitioner has not provided the necessary 
detail or an adequate explanation of the Beneficiary's proposed activities in the course of her daily 
routine. 
• 
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Malter of R-C-1- Inc. 
We acknowl edge that the Bene l1ciary, as the Petiti oner's senior emp loy ee, would have aut hority to 
establish plans, pol icies, and objectives lor the company, supervise any employee s hired, and make 
major decisio ns regar ding its tinances and overa ll direction. However, the Peti tio ner has no t 
established that these types of respo ns ibilitie s would primarily occup y the Benefici ary's tim e within 
one year. By statute, eligib ility tor this cla ss itica tion requi res that the duti es of a pos itio n be 
"primarily" executive or man age ria l in nature. Sections IOI(A) (44)(A) and (B) of the Act. 
On appe a l, the Petition er contends that the Director did not give sufficient weight to the 
Benefici ary' s listed job duties and emphasizes that the prov ided job description s do not include 
clearly non-qu alify ing duti es. Howeve r, t he Director's dec ision retlects that she proper ly considered 
the tot ality of the evidence to deter mine whether the Petitioner met its burd en to show that it wo uld 
have a reaso nable need tor the Beneficiary to primarily perform the claimed mana geria l or executive 
duties. For the additional reaso ns discussed below, the Petitioner has not met this burden . 
B. Projected Sta rting and Busi ness Plan 
If staffing levels are used as a J·ac tor in determi nin g whether an individual wi ll be actin g in a 
managerial or exec uti ve capacity , U.S. Citizenship and Immi gration Services (USCIS) takes into 
account. the reaso nable needs of the organization , in light of the overall purpo se an d stag e of 
development ofthe organizati on. See section IOI(a)(44)(C) of the Act. 
The Peti tio ner 's business plan indic ates that the company anticipates $375,000 in sa les of its her bal 
tea produ cts duri ng its first yea r o f operations. Its proposed organi zational chart shows that the 
Benefici ary will supervi se a chief operating officer (COO) , a finance and HR mana ge r, and a vice 
president - marketing. The COO would eventu ally s upervise customs , l ogistics, and wa reh ouse 
staff the vice president would su pervise region al sales leads and independent contr actors, and the 
11nance manage r would supervi se a two-pers on acco unting team and two administrative sta ff. The 
Petitioner identified one empl oyee, the tinance and HR manager , by name. 2 
The business plan include s a "5-yea r personn el hirin g plan" which shows that the employees to be 
hired in year one include the Beneficiary, the CEO, and the vice presi dent of marke ting. The 
personnel plan docs not menti on the finance and HR manager posi tion, and the inclu ded pro forma 
profit and loss statement doe s not account lor any salary expens es during the first year bey ond those 
to be pa id to the CEO, the COO and the mark eting vice presid ent. This raises questi ons regarding 
the Petitioner's intention to employ the finance and HR manag er. In fact, the Petiti oner provided a 
slightl y revised hiring time line in res pon se to the RFE , wh ich includ ed the finan ce and HR manage r, 
but annotated the position title with "when necessary ." The Petiti one r has not provided a projected 
salary for thi s position and based on the information provided , we can not determ ine to w hat extent it 
would re ly on her services during the initial year o f operations. 
2 
The individual identified as finance and HR manager, is also the company secretary, according to the 
Petitioner's company by-laws and minutes from its organizational meeting. 
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Mauer of R-C-1- Inc. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section IOI(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supe.rvise 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 
profcssional." 3 Section IOI(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)(J). 
The Petitioner does not claim that the Beneficiary would be a function manager, but does indicate 
that she is authorized to hire and fire employees and that she would supervise subordinates with 
managerial job titles. However, the record does not support a finding that any of the Beneficiary's 
subordinates will be supervising their own subordinates by the end of the initial year of operations, 
such that. they could be considered supervisors or managers. Further, although the Petitioner 
indicates that individuals who have bachelor's degrees will fill·the claimed managerial positions, the 
job descriptions provided do not demonstrate that the positions are professional. For example, the 
Petitioner indicates that the COO will be answering the telephone, maintaining records, handling 
incoming and outgoing correspondence, and processing orders and invoices. Further, the Petitioner 
acknowledges that the vice president of marketing will be performing duties that will later be 
assigned to sales people, whose positions do not require a degree. For these reasons, the Petitioner 
has not established that the Beneficiary would act primarily as a personnel manager within one year. 
The Petitioner has also claimed that the Beneficiary will be employed in an executive capacity. 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 IOI(a)(44)(B) 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. 
As noted, the Petitioner submitted a broad description of the Beneficiary's duties that merely 
paraphrases the statutory definition of executive capacity. It has neither defined her actual proposed 
duties in sufficient detail, nor adequately explained how the proposed statT of two to three employees 
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 IOI(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, academics. or seminaries." Therefore. we must focus on the level of education required by 
the position. rather than the degree held by a subordinate employee. 
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Maller iJ( R-C-1- Inc. 
would allow her to primarily focus on the broad goals and policies of the company within one year. 
The Director specifically noted that the Petitioner anticipates $375,000 in tea sales during its first 
year and observed that the company did not appear to anticipate sufficient sales, logistics, or 
administrative staff to accomplish this level of sales without the Beneficiary's involvement in non­
qualifying functions. 
On appeal, the Petitioner maintains that the job descriptions for the COO, vice president of 
marketing, and finance and HR manager indicate that these employees would perform the 
company's day-to-day to sales, logistics, and administrative tasks. For example, the Petitioner states 
that the COO's responsibility for handling "incoming and outgoing correspondence," and assisting 
with "other projects as needed" establishes that that this employee will take care of the company's 
logistics needs during the first year and until a logistics employee is hired (which, according to the 
personnel plan, will be in the third year of operations). At the same time, the Petitioner indicates 
that it will need to lease and operate a warehouse by the third quarter of its first year. The Petitioner 
has not established that the COO's responsibilities for handling "correspondence" and "other 
projects" would reasonably include all logistics and warehouse functions. The Petitioner also 
emphasizes that it will focus on distributing its tea products through large retail customers and that a 
sales figure of $375,000 represents fairly limited sales activities that can be accomplished without a 
large sales staff. However, if the vice president of marketing will be solely responsible for all sales, 
it is unclear how this employee would be free to assist the Beneficiary with other non-executive 
marketing and business development activities. 
Finally as noted, the Petitioner's business plan and pro forma financial projections do not include the 
finance and HR manager as a salaried employee and it is unclear to what extent this individual will 
be involved with the company's routine operations. For these reasons, we agree with the Director's 
conclusion that the record contains insufficient evidence to show that the Beneficiary would be 
removed from significant involvement in the day-to-day operations of the company by the end of the 
first year. 
The Petitioner has consistently stated that the Beneficiary will occupy the senior position in its new 
office, but has not submitted a job description or supporting evidence sufficient to demonstrate that 
she would primarily engage in managerial or executive duties, or that the new office would support a 
managerial or executive position, after the initial. year of operations. 
IV. CONCLUSION 
The Petitioner has not established that it would employ the Beneficiary in a managerial or executive 
capacity within one year. 
ORDER: The appeal is dismissed. 
Cite as Maller ojKC-1-/nc., ID# 1200963 (AAO May 7, 2018) 
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