dismissed L-1A Case: Housekeeping Services

U.S .. Citizenship: 
and Immigration 
Services · 
MATTER OF A-F-S- LLC 
Non-Precedent Decision of the 
Administrative Appeal_s Office 
DATE: FEB. 27, 2019 
APPEAL OF VERMONT SERVI.CE CENTER DECISION · 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a housekeeping service, seeks to temporarily employ the Beneficiary as its president 
under the L-1 A nonimmigrant classification for intracompany transferees. Immigration and Nationality 
Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(l5)(L). The L-lA classification allows a 
corporation or other legal entity (including its affiliate or subsidiary) to transfer ~ 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, con.eluding that the record did not 
establish, as required, that it will employ the Beneficiary in the United States in a managerial or 
executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred by 
deviating from binding prior practice. 
Upon de novo review, 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 101 (a)( 15 )(L) of the Act. In aq.dition, the beneficiary 
must seek to enter the United St~tes 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. The 
petitioner must also establish that the beneficiary's prior education, training, and employment 
qualify him or her to perform the intended services in the United States. 8 C.F.R. § 214_.2(1)(3). 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that it would 
employ the Beneficiary in ·a managerial or executive capacity. The Petitioner asserts that the 
Beneficiary's role would be predoll1inantly managerial, and therefore we need not discuss the 
requirements for an executive capacity. 
Matter of A-F-S- LLC 
"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 respec_t to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for· which the employee has a~thority. Section 
10l(a)(44)(A) of the Act. 
Based on the _statutory definition of managerial. capacity, the Petitioner must first show that the 
Be11eficiary will perform certain high-level responsibilities. Champion World. In~. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). se·cond, the Petitioner must prove that the 
Beneficiary will be primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the Petiti'0ner's other employees. See Family Inc. v. USCJS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
When examining the managerial or executive 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(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. · 
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 
The Petitioner asserted that the Beneficiary would spend 90% of her time performing managerial 
duties. The Petitioner submitted a two-page job description, divided into the foflowing major 
categories and showing _the approximate percentage of time to be devoted to each responsibility: 
• ~ 0% - Review strategic plan related to operational activities. 
• l 15% - Advise US setup on long term financial plans. 
• • 10% -· Recommendation on location for expansion -of business. 
• 5% - Drive various initiative[s] for all department~ to encourage them to 
contribute proactively to achieve operational excellence. 
-• 25% - Advise managers in solving issues. 
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Matter of A-F-S- LLC 
• 10% - Make various business policies that help company to grow in proper 
direction, including proper flow of information at all level[s] of organization, 
transparent business organization structure. · 
• I 0% - Conduct regular meetings with respective departments to set the new 
sales targets, services and budgetary controls. 
• 10% -.Advise company to make specific operational budget to hire best talent 
with excellent skill. 
• 5% - Recommending promotions and assignment of functions to suit the 
dynamic market condition. 
The Director found that the Beneficiary "will be engaged primarily in . . . · non-managerial, 
operations tasks." On appeal, the Petitioner asserts that it provided a job description showing that 
the Beneficiary's intended position meets every element of the statutory definition of "managerial 
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capacity." 
Although the job description is over .two pages long, many of the individual items describe goals or 
principles rather than specific tasks that the president would perform. Examples include: 
Use expertise from management employment· abroad to create a culture of 
productivity and resourcefulness for all staff. 
... [M]anage labor cost for the operation. 
Foster an environment of employee empowerment .... 
Create healthy competitiveness among the team players .... 
Have good time-management skills and [be] able to prioritize tasks m a logical 
manner. 
The Beneficiary would spend 25% of her time "[a]dvis[ing] managers in solving issues," but some 
of the items within that category are responsibilities of lower-level employees. For example: 
Janitorial operations managers need to know how to use the tools and equipment 
needed for the job .... 
Managers must ensur~ that cleanin.g crews us.e the proper protective gear .... 
\ 
A list of the responsibilities of subordinates does not explain what the Beneficiary herself would do 
with 25% of her working time. That same category indicated that the Beneficiary should "[h]ave 
good time-management ,.skills," but time-management skills are a general aptitude rather than a 
defined activity that takes up part o,f the Beneficiary's time. · 
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Matter of A-F-S- LLC 
Other items redundantly appear in more than one.category, such as organizing meetings and creating 
employee incentives. 
Furthermore, the Petitioner has not shown that the scope of the organization would demand the level 
of managerial attention set forth in the job description. We will address this issue in more detail 
below. 
For the reasons set forth above, the Petitioner has not shown that the Beneficiary's duties as 
president would be primarily managerial. 
B. Staffing 
The Petitioner's initial organizational chart showed the following hierarchy: 
• Chairman and Chief Executive Officer 
• President [ the Beneficiary] 
• General Manager [on extended leave of absence] 
• Operation Manager 
• The chart showed no titles for the workers on the lowest level of the chart 
The .Petitioner indicated that it had only three employees at the time of filing ( one operation manager 
and two lower-level workers without titles), with the other workers paid as contractors. 
In response to a request for evidence, the Petitioner indicated that the company had added an office 
manager and two more operation managers. The Petitioner must establish eligibility at the time of 
filing, ~d continuing through adjudication. See·s C.F.R. § 103.2(b)(l). Therefore, subsequent staf( 
changes cannot establish e~igibility if t~e Petitioner _did not already meet all eligibility requirements 
at the time of filing. The Petitioner acknowledged this requirement, stating: "Notwithstanding the 
restructuring and addition of managers, as of the time we submitted our petition, the management 
structure and personnel existed to demonstrate that the President will be able to devote her full-time 
efforts to managing the organization." 
In the denial notice, the Director acknowledged that several of the Beneficiary's subordinates have 
titles that include the word "manager," but the Director found that their actual duties did i:iot appear 
to pertain to managers. The Director also found that the Petitioner had not shown that the 
Beneficiary ·would control the work of professionals or supervisors. The Director concluded that the 
Petitioner had not shown that the company's staff would relieve the Beneficiary from performing 
primarily non-qualifying tasks. 
On appeal, the Petitioner asserts that the Beneficiary need not supervise professionals, because she 
· will control the work of supervisors and managers. The Petitioner states that it "has few employees 
but numerous contractors," and has "provided pr9bative evidence in the forms of organizational 
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Matter of A-F-S- LLC 
diagrams, ~ubordinate job .descriptions, pay records, and purchase contract for expanded business 
operations." We will discuss these elements below. 
The Petitioner cites Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14; 2016), to 
support the proposition that a company with few employees can still support a managerial position 
so long as other workers are available to relieve a given beneficiary from primarily p~rforming non­
qualifying duties. Nevertheless, the burden-is on the Petitioner to establish that these workers are 
available, and what they do. The Petitioner does not diminish or meet this burden simply by 
asserting it relies on contractors instead of employ_ees. 
The lowest level of the initial organizational chart showed 23 names without titles. Below· most of 
the names were notations .such as "+ 3 Peoples" (sic); the Petitioner did not explain why the chart 
identified only some of these individuals by name. Adding together the names and the adjacent 
figures, the lowest level of the organizational chart showed 66 workers. 
The record does not support the Petitioner's claim to use the services of more than 60 contractors. 
The Petitioner submitted 22 IRS Forms 1099-MISC, Miscellaneous Income statements for 2016. 
These 22 forms account for only a third of the staff claimed on the organizational chart. Some, but 
not all, of the names on those forms match names on the organizational chart. The Petitioner 
submitted only two IRS Forms I 099-MISC for 2017 (in order to 'demonstrate that two claimed 
operation managers chose to be paid as contractors rather than employees). 
Furthermore, in 2016, only one documented contractor received an amount compatible with year­
round, full-time work ($29,345). The other 21 received less than $14,000 each, with four receiving 
less ·than $1000 each. The two IRS Forms 1099-MISC for 2017 showed-higher salaries (more than 
$40,000 each), but this_ does not tell us what any other employee or contractor earned that year . 
. The Petitioner did not submit..contracts, agreements, or other documentation to show what services 
the contractors performed for the Petitioner. They may have performed janitorial and cleaning 
services, but the burden is on the Petitioner to show it. There is no presumption that the contractors . . 
performed the company's operational functions, or that the operation managers, had supervisory 
authority over those contractors. · 
' 
The Petitioner submitted purported job descriptions for the general manager, office manager, and 
operation manager positions. These job descriptions, however, appear to have been copied fro~ one 
or more· outside sources. The general manager's job description contains several references to 
property management. For example, it states that the general manager "[ m]anages the operations of 
the buildings" and "the property office," and it mentions "lease ups of new and existing buildings," 
"unit tours,'' "turnover of vacant units," and a "Property Supervisor" who does not appear on the 
Petitioner's organizational chart_. Therefore, we cannot give this job description any weight as an 
accurate reflection of the general manager's true duties, and we cannot conclude that the Petitioner 
relied on this job description in good faith with full knowledge of its contents. (The job description 
did, however, include some references to the name ofthe company, indicating that the Petitioner or 
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Matter of A-F-S- LLC 
r 
) 
someone acting on the Petitioner's behalf customized the company's name but not basic details 
about the nature of the Petitioner's business.) 
When the Petitioner submits one job description that clearly does not apply to the job it purports to 
describe, we will not presume the accuracy or suitability of the other job descriptions. See Matter of 
Ho, 19 l&N Dec. 582, 591-92 (BIA 1988) (unresolved material inconsistencies may lead us to 
reevaluate the reliability ru:id sufficiency of other evidence submitted). Because the Petitioner bears 
the burden of proof, it is ·the Petitioner's responsibility to show that the· other job descriptions are 
more accurate and reliable than the one described above: At best, they are generalized descriptions 
of the type of position shown, which may or may not deviate from the actual tasks performed by the 
specific individuals at the petitioning company. 
Beyond the demonstrably inapplicable duties attrib~ted to the general manager, the office manager's 
duties, as described, are largely administrative and clerical rather than those of a manager. The 
operation manager's job description refers to "employee attendance" although the operation 
managers have no subordinate employees, and indicates that each operation manager "[ m ]ust be able 
to strip/wax floors, clean carpet or [perform] any janitorial tasks if needed." 
Although not mentioned in the initial s_ubmission in November 2017, the Petitioner later stated that it 
acquired another cleaning company in June 2017. Only one of the other company's 20 identified 
personnel began working for the Petitioner. Therefore, the record does not show that this acquisition 
had any significant effect on the scope of the Petitioner's operations. The revised organizational 
chart shows fewer total personnel than the initial_ version. 
· The record demonstrates that the Petitioner provides residential and office cleaning services, as 
claimed, but the record does not support key assertions regarding the size of the company or the 
responsibilities of the Beneficiary and her immediate subordinates. Therefore, the Petitioner has not 
established that the scope and complexity of the . organization warrants managerial oversight as 
claimed. 
III. CONCLUSION 
The appeal will -be dismissed for the above stated reason. In visa petition proceedings, it is, the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. · 
ORDER: The appeal is dismissed: 
Cite as Matter of A-F-S- LLC, ID# 1933860 (AAO Feb. 27, 2019) 
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