dismissed L-1A Case: Import And Distribution

U.S. Citizenship 
and Immigration 
Services · 
MATTER OF 0- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 3, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
I"\, 
The Petitioner, an importer and distributor of quartz slabs, seeks to continue the Beneficiary's 
employment as its business development manager under the L-1 A nonimmigrant classification for 
intracompany transferees. 1 See Immigration and Nationality Act (the Act) section 10 l (a)(15)(L), 
8 U.S.C. § I 101(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 Vermont Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that the Beneficiary would be employed in a managerial capacity under an 
extended petition. 
On appeal, the Petitioner contends that the Director did not properly consider the evidence before her 
and applied a standard of proof that is greater than the preponderance of the evidence standard. 
Upon de novo review, we find that the Petitioner has not overcome the basis for de!}ial. Therefore, 
we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-IA 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 ca.pacity. Id. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
October 6, 2016, until October 7, 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 app!oval of the 
petition to support an executive or managerial position. 
Matter of 0- LLC 
A petitioner seeking to extend an L- I 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 
eviden~e that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
IL MANAGERIAL CAPACITY IN THE UNITED ST ATES 
The Petitioner claims that the Beneficiary would be employed in a managerial capacity. Therefore, 
we will limit our analysis to address this claim and will not discuss. whether the proposed position 
falls within the definition of executive capacity. 
"Managerial capacity" means an assignment within an organization in which the en:iployee primarily 
manages the organizati(!n, 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. 
When examining the managerial capacity of a given beneficiary, we 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 & 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, its staffing levels, and its organizational structure. 
A. Staffing 
If staffing levels are used as a factor in determining wheth~r 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 IO I (a)( 44)(C) of the Act. 
The Petitioner claimed one employee - the Beneficiary - at the time this petition was .filed in 
October 2017. In support of the petition, the Petitioner provided a September 2016 organizational 
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Matter of 0- LLC 
chart depicting the Beneficiary at the top of the hierarchy. overseeing an outsourced accounting 
department. The Petitioner also provided a business plan, which included the company's 3-year 
projected personnel expenses; the plan projected the Beneficiary as the Petitioner's only payroll 
expense for that 3-year period. Although the Petitioner projected an additional annual expense of 
$400 in "professional fees" and $6000 in "supporting service fee[s]," it did not.specify what either of 
these fee categories would entail and thus it does not appear that either category was intended to 
account for additional personnel who would support the Beneficiary in his proposed position. 
In a December 2017 request for evidence (RFE) the Petitioner was asked to specify whether the 
Beneficiary would assume the role of a personnel or a function manager. The Director observed that 
the Petitioner's employee earnings record shows the Beneficiary as its only employee and asked the 
Petitioner to provide an updated organizational chart showing its staffing hierarchy along with 
employee job descriptions and evidence of wages patd. 
In response, the Petitioner provided a job offer letter from February 2018, two months after the RFE 
was issued; the letter showed that the Petitioner was looking to fill the position of sales manager in 
March 2018. The Petitioner also provided an organizational chart for 2018 showing the 
Beneficiary's proposed position at the top of the hierarchy, overseeing an administrative assistant, a 
sales manager, and an accountant. The evidence did not show that the Petitioner employed anyone 
but the Beneficiary or hired contractors to provide accounting, sales, or logistics services at the time 
this petition was filed. 
In the denial decision, the Director acknowledged the Petitioner's submission of an organizational 
chart, which showed an outsourced accounting department. However, the Director found that the 
Petitioner did not provide evidence explaining how its staffing structure can support the Beneficiary 
and relieve him from having to carry out the organization's non-managerial activities. Although the 
Director also acknowledged the February 20 l 8 job offer letter, she correctly observed that the job 
offer was made and accepted after this petition was filed and thus the new employee would not be 
considered in determining the Petitioner's eligibility as of the date of filing. 
On appeal, the Petitioner restates the Beneficiary's job duties and asserts that the Beneficiary has the 
necessary managerial experience to carry out those duties. It claims that "any operation [sic] and 
administrative tasks completed by the Beneficiary ... are purely incidental to the position" and that 
the previously submitted organizational chart and "Service Agreement" establish that the 
Beneficiary would be supported by an administrative assistant and an accountant. However, a 
petitioner's unsupported statements are of very limited weight and normally will be insufficient to 
carry its burden of proof. The Petitioner must support its assertions ·with relevant, probative, and 
credible evide.nce. See Maller ofChawathe, 25 l&N Dec. 369, 376 (AAO 2010). 
Here, the Petitioner provided two organizational charts with no evidence corroborating the staffing 
structures depicted therein. F_urther, as the Director correctly pointed out, 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 ). To the extent that 
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Malter of 0- LLC 
one of the charts is dated 2018, it does not depict the Petitioner's staffing structure as of October 
2017 when this petition was filed and therefore it cannot be used to establish that the Petitioner was 
eligible at the time of filing. The Petitioner also refers to "the Service Agreement" and claims that 
"the Beneficiary is supported by an Administrative Assistant and outside financial and accounting 
matters are supported by an Accountant and matters concerning payroll and benefits are handled by 
a payroll service." However, "the Service Agreement" to which the Petitioner references is a lease 
in which the landlord agreed to provide utility usage and phone· answering services as part of the 
agreement. The record also contains a December 2017 email from 
. a payroll service, and a $75 invoice for accounting services in January 2018 . 
However, neither the email nor the invoice establishes that the Petitioner contracted a payroll or an 
accounting service as of the date this petition ·was filed. 
The Petitioner, did not, however explain how fr would relieve the Beneficiary from having to carry 
out other daily operational functions, such as selling and marketing quartz slabs, issuing and paying 
invoices for product sales and purchases, and arranging for product shipment and delivery. Merely 
establishing that the Beneficiary would be relieved from having to answer telephone calls is not 
sufficient to establish that he would be relieved from these various non-managerial tasks that are 
critical to its daily function. 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 IOI(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); Malter of Church Scientology 
Int'/, 19 I&N Dec. 593, 604 (Comm'r I 988). Without adequate supporting evidence, we cannot 
conclude that the Beneficiary would allocate his time primarily to tasks of a managerial nature. 
On appeal, the Petitioner cites Malter <~l Z-A-, Inc., Adopted Decision 20 I 6-02 (AAO Apr. 14, 
2016), in support of the contention that the Beneficiary will assume the role of a function manager; it 
refers to a previously submitted organizational chart and "evidence of the Beneficiary's attempts to 
hire additional staff." However, as discussed above, the Beneficiary was unable to expand his 
support staff beyond a single administrative assistant as of the date of filing. Claiming that the 
Beneficiary will manage the Petitioner's business development function is not sufficient without 
evidence showing that the Petitioner has the organizational capability to relieve the Beneficiary from 
having to primarily perform the underlying non-managerial duties of that function. 
Furthermore, the regulations that apply to an extension of a "new office" petition require that we 
examine the organizational structure and staffing levels of the Petitioner. See 8 C.F.R. 
§ 214.2(1)(14)(ii)(D) . The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows the "new office" 
operation one year within the date of approval of the petition to support an executive or managerial 
position. If a business does not have the necessary staffing after one year to sufficiently relieve the 
beneficiary from performing operational and administrative tasks, the petitioner is ineligible for an 
extension . Here, the Petitioner's original business plan indicates that the Petitioner intended to 
operate with the Beneficiary as its only employee for th~ first three years of its operation. Although 
the Petitioner provided evidence showing that the Beneficiary attempted to hire .an additional 
employee, that attempt did not result in anyone being hired as of the date this petition was filed. 
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Matter of 0- LLC 
While it is likely that the Beneficiary, as the Petitioner's only employee, will exercise discretion over 
the day-to-day operations and possess the requisite level of authority with respect to discretion~ry 
decision-making, these factors alone are not sufficient to establish that the Beneficiary would 
allocate his time primarily to managerial job duties. The Petitioner must provide evidence showing 
tha( it has the ability to relieve the Beneficiary from having to spend his time primarily carrying out 
the organization's operational functions. A petitioner's unsupported statements are of very limited 
weight and nonnally will be insufficient to carry its burden of proof. The Petitioner must support its 
assertions with relevant, probative, and credible evidence. See Matier ofChawathe, 25 I&N Dec. 
369, 3 76 (AAO 20 I 0) .. The Petitioner argues on appeal that it has provided sufficient evidence and 
that it met the preponderance of the evidence standard of proof. We disag-ree and find that the 
Petitioner has not established that its limited staffing composition at the time of filing would be 
sufficient to support the Beneficiary in a function manager role where his duties would be to 
primarily manage, rather than perform the underlying duties ot: the business development function. 
B. 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 will 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 performed by the Beneficiary and indicate whether such duties are 
in a managerial capacity. See 8 C.F.R. § 214.2(1)(3)(ii). 
As noted earlier, the Petitioner claims that the Beneficiary will manage the business development 
function, which is critical to the U.S. operation. 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 ~ill 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 "( 1) 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 pe,:fhrm, the function; (4) the beneficiary will act· at a senior level within the 
organizational hierarchy o.r with respect to the function managed; and (5) the beneficiary will 
exercise discretion over the function's day-to-day operations." Maller of G- Inc., Adopted Decision 
2017-05 (AAO Nov. 8, 2017). Although a function manager is not required to directly supervise or 
manage subordinate manageric:i,l, supervisory, or professional employees, the Petitioner must still 
establish that it is able to relieve the Beneficiary from significant involvement. in the day-to-day 
activities of the function he is claimed to manage. 
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Matter of 0- LLC 
In this matter, despite raising the function manager claim , the Petitioner has not adequately described 
the Beneficiary's job duties or provided evidence that he would primarily perform duties that are 
consistent with managing the business development function. For instance, the Petitioner repeatedly 
uses terms like "direct" and "oversee" in listing the Beneficiary's job duties ; these terms necessarily 
imply that someone other than the Beneficiary would perform the underlying work that he would 
direct and oversee. The Petitioner also claims that the Beneficiary would "[c]onsult with product 
development personnel" in carrying out his job duties . However , as discussed earlier, the Petitioner 
has not provided evidence to establish that it has either in-house employees or outsourced 
contractors to whom the Beneficiary can delegate the operational tasks associated with .the business 
development function he is tasked with managing . Thus, despite claiming that Beneficiary's duties 
would be limited to primarily directing and overseeing, rather than actively performing, the duties of 
his function, the Petitioner has not laid out a roadmap for how it would relieve the Beneficiary from 
having to carry out the underlying duties of the business development function when it had no 
employees , aside from the Beneficiary , at the time this petition was filed. If USCIS finds reason to 
believe that an assertion stated in the petition is not true, it may reject that assertion . See, e.g., 
Section 204(b) of the Act, 8 U .S.C. § ll54(b); Anelekhai v. INS, 876 F.2d 1218, 1220 (5th Cir. 
1989); Lu-Ann Bake,y Shop. Inc. v. Nelson, 705 F. Supp . 7, 10 (D.D .C. 1988); Systronics C01p. v. 
INS. 153 F. Supp . 2d 7, 15 (D.D .C. 2001). 
In whole, the Petitioner provided a job description that is inconsistent with its staffing composition 
and organizational complexity at the time this petition was filed. In light of the evidentiary 
deficiencies discussed above, the Petitioner has not established by the preponderance of the evidence 
that the Beneficiary would manage an essential function . 
III. FOREIGN EMPLOYMENT 
Further , while not addressed in the Director's decision, we note that when asked about the 
Beneficiary's employment abroad in the petition form, the Petitioner stated that the Beneficiary has 
worked for its claimed foreign affiliate , from Nov.ember 2007 to October 2017 
without interruption . However, U.S. Department of State records show that the Beneficiary 
previously filed three nonimmigrant visa applications that are inconsistent with the Petitioner's 
current claim regarding the Beneficiary ' s foreign employment. At the time of the first filing in 
October 2016 , . the Beneficiary claimed no prior employment and named 
as his present employer ; at the time of his second filing in May 2017, the 
Beneficiary stated that he was employed at Italy from January 2007 through 
December 2010 ; and in his latest application, which was filed in November 2018, the Beneficiary 
claimed no prior employment and stated that he has been employed as the CEO of 
since February 2011. These dates and places of employment are inconsistent with the 
Petitioner's current claim . 
While we are not making an adverse finding based on the information obtained from the U.S. 
Department of State, the Petitioner may need to address the Beneficiary ' s statements regarding his 
employment abroad in any future petition filed by the Petitioner on his behalf . 
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Maller of 0- LLC 
IV. 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. 
ORDER: The appeal is dismissed. 
Cite as Matter of 0- LLC, ID# 1933910 (AAO Jan. 3, 2019) 
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