dismissed L-1A Case: Human Resources Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-C- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 15,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a consulting company, seeks to continue the Beneficiary's employment as its 
"President/CEO" under the L-1 A nonimmigrant classification for intracompany transferees. 1 See 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 8 U.S.C. § 110l(a)(l5)(L). The 
L-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 California Service Center denied the petition concluding that the Petitioner did 
not establish, as required, that the Beneficiary would be employed in a managerial or executive 
capacity under the extended petition. 
On appeal, the Petitioner contends that the Beneficiary will devote "a majority of his time and 
efforts" to carrying out managerial functions. 
Upon de novo review, we find that the Petitioner has not overcome the basis 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 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. /d. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
August 19,2016, until August 18,2017. A "new office".is an organization that has been doing business in the United 
States through a parent, branch, affiliate, or subsidiary for less than one year. 8 C.F.R. § 214.2(1)( I )(ii)(F). The 
regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation one year within the date of approval of the 
petition to support an executive or managerial position. 
Matter of P-C- Corp. 
A petitioner seeking to extend an L-1 A petition that involved a new office must submit a statement 
of the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
evidence of its financial status, evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Petitioner claims on appeal that the Beneficiary's proposed position is managerial in nature. We 
note, however, that prior to filing the appeal, the Petitioner provided inconsistent statements as to the 
nature of the proposed position, at times claiming that the Beneficiary would "focus on sole 
executive duties," 2 while later restating the statutory definition of "managerial capacity" and 
referring to the Beneficiary as occupying a "managerial role. "3 As the Petitioner does not pursue its 
executive capacity claim on appeal, we will focus exclusively on the Petitioner's latest claim that the 
Beneficiary's proposed employment would be 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. 
When examining the managerial 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, 
users exan1ines the cotnpany~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, its statling 
levels, and its organizational structure. 
2 Exhibit R, initial supporting evidence. 
3 Exhibit A, response to the notice of intent to deny (NOID). 
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Matter of P-C- Corp. 
A. Staffing 
If staffing levels are used as a factor in detem1ining whether an individual is acting in a managerial 
or executive capacity, USCIS takes into account the reasonable needs of the organization , in light of 
the overall purpose and stage of development ofthe organization. See section 10l(a)(44)(C) ofthe 
Act. 
The Petitioner in this instance claimed five employees at the time of filing. In one of several 
supporting statements the Petitioner explained that it currently offers its clients a "full range of 
[h]uman [r]esources services," executive headhunting , recruitment process outsourcing, payroll 
outsourcing , and project workforce outsourcing. As evidence of its current contractual obligations, 
the Petitioner provided a copy of its contract with claiming that it agreed to act 
as the "sole representative" tasked with advising and recruiting foreign students to attend U.S.-based 
programs. A review of the contract indicates, however, that the Petitioner acts as a "non­
exclusive representative" of the client and thus may not be the "sole representative" as claim ed. We 
note that the Petitioner did not provide information stating which of its employees would carry out 
the underlying recruitment services of this contract. 
The Petitioner also provided an organizational chart depicting the Beneficiary at the top of the 
hierarchy, overseeing an administrative specialist, a consultant , and a business manager with the 
latter overseeing another consultant. The organizational chart lists each .employee by name and 
position title and inch.1des brief job descriptions for the listed positions and disclos es each 
employee's educationalcredeiltials. The Petitioner also provided its payroll documents and a second 
organizational chart depicting its prospective staffing structure that includes the restaurant whose 
purchase was pending at the time the petition was filed. The prospective chart shows the business 
manager, administrative specialist, and a restaurant manager as the Beneficiary's direct subordinates 
and depicts both consultants as subordinate to the business manager. 
The Director subsequently issued a NOJD, stating that the Beneficiary's subordinate staff does not 
appear to be comprised of managerial or professional employees. 
In response, the Petitioner provided a statement claiming that a clerical error was responsible for an 
inaccurate depiction of its current staffing structure. The Petitioner claims that despite submitting an 
organizational chart depicting the Beneficiary as overseeing one of the company's two consultants, 
both consultants are directly subordinate to the business manager. The Petition claimed that the 
Beneficiar y's only direct subordinates are a busine ss manager and an administrative specialist , and 
further stated that the previously submitted organizational chart was the result of an "honest" 
mistake. It offered a new organizational chart depicting both consultant s as the business manager's 
direct subordinates. We note, however, that this claim is inconsistent with the current appeal brief, 
which reiterates the organizational hierarchy depicted in the original organizational chart where the 
Beneficiary was shown as directly overseeing a consultant as one of his three subordinates. If the 
original organizational chart depicted an incorrect organizational hierarchy , it is unclear why the 
Petitioner now restates the purportedly erroneous information on appeal. The Petitioner must 
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Matter of P-C- Corp. 
resolve this inconsistency in the record with independent, objective evidence pointing to where the 
truth lies. Maller of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). Although the Petitioner claimed that 
the Beneficiary "would supervise a multi-tiered management structure, " it did not provide sufficient 
credible evidence to support this claim. 
The Petitioner also provided a letter from an Associate Dean of Academic 
Affairs at the who expressed his professional opinion 
about the managerial nature of the Beneficiary's proposed position. The opinion took into account 
the Petitioner 's prospective purchase of a restaurant- a transaction that had not been finalized either 
at the time the petition was filed or at the time the NOID response was submitted. We note that 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). 
opinion was partly based on an event, i.e., the purchase of a restaurant , which had 
not yet taken place as of the date this petition was filed; therefore, that opinion has limited relevance 
in helping to establish the Petitioner's eligibility at the time of filing. The Petitioner resubmitted a 
copy of the proposed organization al chart that include s a restaurant and proposed restaurant staff as 
part of the prospective hierarch y; it stated that in the meantime , it will provide recruitment and HR 
outsourcing services to clients in the hospitality, automotive, and healthcare industries. With the 
exception of the previously submitted contract with the Petitioner did not 
provide further evidence to show that it has clients to whom it is currently providing consulting or 
HR recruitm ent services in any of the listed industries . 
In the denial decision , the Director correctly pointed out that the Petitioner had not yet finalized its 
purchase of a restaurant business and thus disregarded the proposed organizational chart that 
included a restaurant as part of the Petitioner 's organizational hierarchy. The Director concluded 
that the Petitioner did not establish that the Beneficiary would primarily oversee the work of 
managerial or professional subordinates. 
On appeal , the Petitioner argues that it is "a misconception" to rely on the number of subordinate 
employees as a relevant factor in determining whether the Beneficiary would be employed in a 
managerial capac ity, contending that a beneficiary can be emplo yed in a managerial capacity even if 
he or she has only one subordinate, so long as that beneficiary functions at a senior level with the 
organization ' s hierarchy or with respect to the function he or she manages. We disagree with the 
Petitioner 's emphasis on the Beneficiary's placement within the hierarchy to the exclusion of other 
relevant factors. 
The fact that the Beneficiary will manage or; direct a busine ss does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of section 1 01 (a)( 44) of the Act. By statute, 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 day-to-day operations 
and possess the requisite level of authority with respect to discretionary decision-making, these two 
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Matter of P-C- Corp. 
factors are not sufficient to establish that the Petitioner has the capacity to relieve the Beneficiary 
from having to primarily engage in the organization's daily operational tasks. 
Further, the Petitioner correctly observes that we must take into account theireasonable needs of the 
organization and that a company's size alone may not be the only factor in determining whether the 
Beneficiary is or would be employed in a managerial or executive capacity. See section 
IOI(a)(44)(C) of the Act. However, it is appropriate for USCIS 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 or a company 
that does not conduct business in a regular and continuous manner. Family Inc. v. USCIS, 469 F.3d 
1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a 
company may be especially relevant when USCIS notes discrepancies in the record. See Systronics, 
153 F. Supp. 2d at 15. 
In the present matter, the Petitioner describes a hierarchy that consists of a four-person support staff 
below the Beneficiary's position. However, the Petitioner has not provided sufficient evidence 
establishing that this staffing composition will relieve the Beneficiary from having to directly engage 
in perfonning its daily operational tasks. The Petitioner provided a copy of a contractual agreement 
where it agreed to recruit students in China and Taiwan to attend its client's U.S.-based programs; 
however, it did not adequately describe the duties of the Beneficiary's subordinates and explain who 
would carry out the underlying services of an agreement that appears to require travel to China and 
Taiwan for student recruitment. The Petitioner also provided two contracts titled "Overseas 
Education Service Agreement," which show that each client agreed to pay the Petitioner $15,000 in 
exchange for receiving "a relevant consulting service" regarding attending an educational institution 
in the United States. However, it is unclear that someone other than the Beneficiary was responsible 
for seeking out and ultimately retaining these clients. 
Although a listed duty of one of the Petitioner's consultants - who may or may not be the 
Beneficiary's direct subordinate- includes acting as a liaison between clients and candidates, it does 
not appear that this duty would be performed within the context of education consulting; rather, it 
appears that the consultant's assignment is geared towards staff recruitment where the client 
involves a company that is looking to staff its organization. Similarly, the job description of the 
·other consultant (whose position is subordinate to the business manager) indicates that he will assist 
the business manager by identifying business resources and discovering new products and service 
packages. In light of these subordinates' job descriptions, it does not appear that anyone has been 
assigned the tasks of seeking out foreign clients to purchase education-based consultation services or 
actually providing those consulting services once a client is obtained. Without further information, 
we cannot rule out the possibility that the Beneficiary will execute these operational job duties to 
meet the Petitioner's contractual obligations. Likewise, the Petitioner did not identify anyone within 
its organization who would be tasked with marketing its various services, nor did it state who would 
follow up on the sales leads generated by the support staff. 
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Matter of P-C- Corp. 
Although the Petitioner has expressed the desire to expand its organization in the future, the 
Petitioner's eligibility is based on the facts and circumstances that existed at the time of filing. In 
light of the deficiencies discussed above, we cannot conclude that the Petitioner's support staff at the 
time of filing was sufficient to relieve the Beneficiary from having to spend considerable portions of 
his time to carrying out the operational functions of the organization. 
B. Duties 
In one of two supporting cover letters, the Petitioner stated that the Beneficiary will focus on negotiating 
contracts with prospective clients, generating business, and supervising subordinates "to ensure high 
productivity and sales." In another supporting statement, the Petitioner claimed that it was in the process 
of purchasing an established restaurant to increase its revenues. A separate job description was provided 
discussing the Beneficiary's prospective job duty breakdown once the restaurant purchase becomes 
finalized. In the meantime, however, the Petitioner described itself as a business that offers a variety of 
staffing services, including "executive search, recruitment process outsourcing (RPO), payroll 
outsourcing and project workforce outsourcing." The Petitioner referred to the Beneficiary's "consulting 
career," stating that the Beneficiary "has placed numerous executives in key management roles." The 
Petitioner did not state whether the Beneficiary plans to continue providing these headhunting services in 
his proposed position with the U.S. entity. The Petitioner also provided the Beneficiary's job duty 
breakdown, claiming that he allocates his time as follows: 
• 30% is devoted to managing daily operations by leading the company, assigning job duties, 
engaging in business negotiations with business partners, attending meetings and conferences in 
pursuit of new clients, monitoring the budget, and making decisions on company expenditures, 
such as supplies, staff salaries and benefits, and marketing and advertising; 
• 20% is devoted to strategies and planning, which will involve setting and implementing 
strategies, "creating the organization's culture and set[ting] example tor the staff and 
management team to follow"; 
• 25% is devoted to "business development and relation," which will involve negotiating collective 
bargaining agreements, agency contracts, and consulting agreements and contacting potential 
clients to establish business relationships; 
• 20% is devoted to staffing concerns, such as providing "general guidance," evaluating 
performance of managerial employees, and ensuring staff compliance with procedures and 
company guidelines; and 
• 5% is spent on miscellaneous duties that were not specifically identified. 
The Petitioner provided a separate job duty breakdown, discussing the Beneficiary's prospective job 
duties once the purchase of the restaurant is fin~lized. However, as we noted above, only the facts 
and circumstances that were already in existence at the time of filing will be considered for the 
purpose of determining the Petitioner's eligibility for the benefit sought herein. As the restaurant 
was not part of the Petitioner's organization at the time of filing, we will not consider the proposed 
job duties that the Beneficiary would perform once the restaurant purchase is finalized. 
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Mauer of P-C- Corp. 
In the NOID, the Director stated that the record did not contain sufficient evidence establishing that 
the Beneficiary would be employed in a managerial or executive capacity. The Director noted that 
the Petitioner had not yet finalized the purchase of a restaurant and further observed that there was 
no restaurant staff for the Beneficiary to oversee even once the purchase is finalized. 
In response, the Petitioner resubmitted one of its previously provided statements and offered a new 
statement claiming that the Beneficiary will assume a managerial role that will involve "working 
with managers" and supervisingthe U.S. entity. However, the Petitioner's organization had no more 
than a single manager subordinate to the Beneficiary at the time of filing. As such, the record does 
not support the claim that the Beneficiary would be "working with managers" in the course of his 
daily routine. Likewise, the Petitioner has not provided sufficient evidence to support the claim that 
the Beneficiary's subordinate business manager will act as the first-line supervisor who will relieve 
the Beneficiary from daily non-supervisory duties. In order to conclude that the Beneficiary would 
be relieved from primarily carrying out the Petitioner's operational tasks, the Petitioner must first 
provide a detailed job description that adequately identifies the Beneficiary's daily activity, as the 
actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. I 103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). We further note that 
reciting the Beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the Beneficiary's daily job duties. See 
8 C.F.R. § 214.2(l)(3)(ii). 
In the present matter, the Petitioner has not provided a sufficiently detailed job description that 
identifies the Beneficiary's routine tasks with adequate specificity and demonstrates that the primary 
portion of his time would be devoted to job duties of a managerial nature. For instance, the 
Beneficiary's job duty breakdown broadly states that the Beneficiary's responsibility with respect to 
daily operation management includes leading the company, assigning tasks, attending client 
meetings, and monitoring the budget. The Petitioner did not, however, list the specific elements that 
are entailed in leading the company. Further, in light of the Petitioner's submission of inconsistent 
organizational charts, we are unable to determine who the Beneficiary will manage and to whom he 
will assign tasks as a routine part of his day or week. 
The Petitioner also indicated that the Beneficiary would engage in client communications as a 
component of managing daily operations and also as part of his role in business development. 
Although we recognize that meeting with potential clients is a necessary component of a consulting 
business, the Petitioner has not distinguished this sales component from the sales tasks performed by 
its business manager and consultants; it is therefore unclear that meeting with clients to forge 
business relationships and negotiate contracts are managerial tasks. Due to the generalities in this 
job description, we are unable to determine whether the Beneficiary would continue providing 
headhunting services as is claimed to have been part of his earlier career path. We note that 
providing headhunting services would indicate that the Beneficiary performs a key operational task 
that would not be deemed as managerial. Likewise, while the Beneficiary is only charged with 
monitoring the company's budget, it is unclear who, if not the Beneficiary, would carry out the 
underlying operational tasks associated with gathering the information necessary to create the 
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Malter of P-C- Corp. 
budget. While no beneficiary is required to devote I 00% of his or her time to managerial-level 
tasks, the petitioner must establish that the non-qualifying tasks the beneficiary would perform are 
only incidental to the proposed position. 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 sections \Ol(a)(44)(A) and (B) of the Act (requiring that 
one "primarily" perform the enumerated managerial or executive duties); see also Maller of Church 
Scientology In! 'I, 19 I&N Dec. 593, 604 (Comm'r 1988). Here, the Petitioner has not determined 
precisely how much time would be allocated to managerial versus the non-managerial functions. 
Next, we find that the Petitioner's discussion of the Beneficiary's role with respect to strategies and 
planning is vague and non-descriptive. Although the Petitioner claims that the Beneficiary has 
discretionary authority to determine the company's strategic direction and oversee strategy 
implementation, it does not describe what the company's strategy is or identify any specific actions 
the Beneficiary took to establish and execute such strategy. The Petitioner also broadly referred to 
"the organization's culture," but did not define that phrase within the context of the Petitioner's 
consulting business or specify the Beneficiary's specific role in creating a business culture. Broadly 
stating that the Beneficiary will lead by example is not sufficient, as this phrase does not describe 
any actual tasks that the Beneficiary would undertake in his role as key strategist and planner. 
The Petitioner is equally vague in stating that the Beneficiary will provide guidance and supervision 
to the company's staff. Although this conveys a sense of the Beneficiary's discretionary authority 
over the Petitioner's personnel, it lacks information about specific actions that are related to staffing 
issues and are part of the Beneficiary's daily or weekly routine. We also question the validity of the 
Petitioner's claim that the Beneficiary will evaluate "each manager's" performance, in light of the 
fact that at the time the petition was filed the Petitioner did not have multiple managers for the 
Beneficiary to oversee. It sum, it is unclear whom the Beneficiary oversees and what actual tasks he 
performs in meeting his oversight responsibility. 
On appeal, the Petitioner argues that the Director misconstrued the term "primarily," stating that it 
only needs to establish that the "majority" of the Beneficiary's time would be allocated to 
managerial tasks. Even if the Petitioner's contention were true, as we discussed, the job duty 
breakdown is deficient both in its vague content and its time allocations. Thus, even if the Petitioner 
was only obligated to establish that the majority of the Beneficiary's time would be devoted to 
managerial tasks, the lack of supporting evidence would preclude us from Issuing a favorable 
finding. Despite claiming that the Beneficiary "devotes a majority of his time and efforts toward 
managerial functions," the Petitioner has not provided sufficient evidence to support this claim. 
Alternatively, the Petitioner has not established that the Beneficiary would assume the role of a 
function manager. 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 I 0 I (a)( 44)(A)(ii) of the Act. lf a 
petitioner claims that a beneficiary will manage an es"sential function, it must clearly describe the 
duties to be performed in managing the essential function. ln addition, the petitioner must 
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Malter of P-C- Corp. 
demonstrate that"(!) 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 perji1rm, 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 ofG- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
In the present matter, the Petitioner has not specifically identified an essential function that the 
Beneficiary would manage, nor has it provided a detailed job description determining that he would 
manage, rather than perform the underlying duties of, an essential function. As discussed above, the 
Petitioner has provided a deficient job description that does not state the Beneficiary's routine 
managerial tasks with specificity and assigns a percentage of time to groups of broadly stated duties 
so that we are unable to determine what tasks the Beneficiary would perform as a routine part of his 
day or week. Without this critical information we cannot conclude that the Beneficiary would 
primarily perform tasks of a managerial nature. 
III. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that the Beneficiary 
will be employed in the United States in a managerial capacity under an extended petition. The 
appeal will be dismissed tor this reason. 
ORDER: The appeal is dismissed. 
Cite as Malter of P-C- Corp., JD# 1184257 (AAO Ma)'"15, 2018) 
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