dismissed L-1A Case: Import And Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-Y-1-T-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY8,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an "import and retail" business, seeks to temporarily employ the Beneficiary as its 
"U.S./China Business Development Manager" under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section I 0 I (a)( 15)(L), 8 
U.S.C. § IIOI(a)(IS)(L). TheL-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 record did not 
establish, as required, that the Beneficiary has been employed abroad, or would be employed in the 
United States, in a managerial or executive capacity. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred by 
overlooking relevant evidence regarding the foreign employer's personnel, and by failing to consider 
the Petitioner's claim that the Beneficiary will manage an essential function in the United States. 
1 
Upon de novo review, we will dismiss the appeal. 
l. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneticiary "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 I 0 I (a)(IS)(L) of the Act. In addition, the beneticiary 
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. 
"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; 
1 
The Petitioner consistently claims that the Beneficiary has been employed abroad, and will be employed in the United 
States, in a managerial capacity and did not claim that the Beneficiary has been or would be employed in an executive 
capacity. Therefore. our analysis will address only the Petitioner's claim that the Beneficiary's current and proposed 
positions are in a managerial capacity. · · 
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Matter ofT- Y-1-T-. LLC 
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 function s at a senior level within the 
organizational hierarch y or with respec t to the function managed; and exercises discretio n over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) ofthe Act. 
II. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The tirst issue we will address is whether the Petitioner establi shed that the Benefici ary has been 
employed abroad in a managerial capacity. 
When examining the manageri al capacity of a given beneficiary , we will look to the petitioner's 
description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of the 
job duties, U.S. Citizenship and Immigration Services (USCIS) examines 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 under stand ing a beneficiary's ·actual duties and ro le in a 
business. Accordingly, we will discuss evidenc e regarding the Bene ficia ry's job dutie s along with 
evidence of the nature of the foreign entity's business, its staffing levels, and its organizational 
structure. 
A. Duti es 
Based on the definition of manage rial capacity, the Petitioner must first show that the Beneficiary 
has performed 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 has 
been primaril y engaged in managerial duties , as opr.osed to ordinary operat ional activities a longs ide 
the foreign entity's other employees. See Family Inc. v. USCIS , 469 F.3d 1313, 13 16 (9th Cir. 
2006); Champion World, 940 F.2d at I 533. 
The Petiti oner stated that the Bene11ciary has served as a vice man age r for its Chinese parent 
company smcc 2014 , with_ responsibility for overseeing the operations of a Chinese 
subsidiary known as The Petitioner provided a lette r from the foreign entity which 
listed the Benetic iary's "primary job duties" as follows: 
2 The Petitioner indicated that the Beneficiary concurrently co-managed the parent company's international trade 
department and a second Chinese subsidiary between January 2014 and June 2016. It did not describe the duties he 
performed in this dual role or provide information regarding the number or types of subordinates he supervised within 
either the international trade department or the other subsidiary. As such, our analysis of the Beneficiary's foreign 
employment will be limited to his role as vice manager responsible for overseeing which the Petitioner 
represents as his primary qualifying role for the foreign entity. 
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Matter ofT->'-!-T-. LLC 
• Convene and preside with the General Manager the shareholders ' meeting, 
organize to discuss and make decisions on development 
· strategies, R&D and ongoing investment projects ( 15%); 
• Formulate overall business plan · and annual operation plan; 
implement and make adjustment timely according to the change of the market 
environment (30%); 
• Monitor financial reports and other ope ration reports, make the 
annual financial budget plan and tinal accounts plan of the compa ny, and monitor 
and manage the asse ts of the company (20%); 
• Take part in the projects negotiation with suppliers, signing the business con tracts 
and dealing with the business on behalf of (13%); 
• Examine the work plans of Production/Development Manage r and Office 
Manager and supervise and evaluate their performance (12%); 
• Hire, promote and lay ofT Production/Deve lopment Manager and Office Manager 
and decide 'on their salaries, bonuses and dividends (1 0%). 
Although the Director advised the Petitioner that · the duties were too broad · to establish what the 
Beneficiary does on a day-to-day basis, the Petitioner did not respond to the Director's request for 
additional information regarding the specific tasks the Beneficiary performs. We agree with the 
Director's determination that the listed responsibilities are too general to establ ish that the 
Beneficiary has primarily performed managerial duties in his role as vice manager. 
The descr iption conveys the Beneficiary' s authority over the operatio ns of but does 
not clarify what h e does as a pa11 of his dail y routine. For examp le, the fo reign entity's letter 
indicates that the Beneficiary spends a total of 45 percent of his time on higher level operational 
planning and decision-making activities, but does not provide specific examples of plans, projects or 
strategies he has undertaken in support of its claim that business planning requires nearly half of his 
time. The Beneticia ry's responsib ility for overall tinancialmanag ement of the company is described 
in similarly vague terms, while his respons ibility for negotiating with suppliers and "dealing with the 
b
usiness" for without additional expla nation, s uggests that he is directly involved in 
non-managerial sales and purchasing acti:vities. Reciting the Benefic iary' s vague job responsibilities 
or broadly-cast business objectives is not sufticicnt; the regulations require a detailed description of 
the Beneficiary's daily j.ob duties. The Petitioner has not provided any detail or explanatio n of the 
Beneficiary's activities in the course of his daily routine. The actual duties themselve s will reveal 
the true nature of the employmen t. J;edin Bros. Co., Lid v. Sava, 724 F. Supp . II 03, I I 08 
(E.D.N. Y. 1989), c~u··d, 905 F.2d 41 (2d. Cir. 1990). 
As discussed further below, the record does not contain consis tent information regarding the nature 
of the work performed by the Bene ticiary' s subord inates and we cannot determine whether those 
employees assist him with operational activities such as sales, marketi ng, purchasing, and day-to-day 
administrativ e a nd tinancial duties. Without a ·clear picture of how work is allocated · among the 
employees, the Petitioner's claim that the Beneficiary spends his time primarily on 
. personnel supervision and 
higher-level planning and strategy functions is not adequa tely supported 
in the record. 
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MallerojT-V-1-T-. LLC 
The fact that the Beneficiary manages a business or department of a business as its senior employee 
does not necessarily establish eligibility for classification as an intracompany transferee in a 
managerial capacity within the meaning of section I OJ (a)(44)(A) of the Act. Even though the 
Beneficiary may exercise discretion over day-to-day operations and possess the 
requisite level of authority with respect to discretionary decision-making, the broad overview of his 
responsibilities is insufficient to establish that his actual duties have been primarily managerial m 
nature. 
B. Staffing and Organizational Structure 
If stafting levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USC IS takes into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development of the organization. See section 10 1(a)(44)(C) ofth e 
Act. 
In the denial decision, the Director acknowledged the Beneficiary's job description, but found that 
the Petitioner did not provide sufficient information regarding the subordinate employees who work 
under his supervision. On appeal, the Petitioner asserts that the Director overlooked evidence of 
employees, which included payroll summaries, copies of their resumes, and their 
employment agreements, among other items. We agree with the Petitioner that it is unclear whether 
the Director reviewed all available evidence related to the foreign entity's employees. However, for 
the reasons discussed below, the evidence as a whole does not show that the foreign entity employs 
the Beneficiary in a managerial capacity. 
The statutory definition of "managerial capacity" allows for 
both "personnel managers" and 
"function managers." See section I 0 I (a)( 44 )(A )(i) and (i i) of the Act. Personnel managers are 
required to primarily supervise 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 "lirst 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 
professional. " Sec tion I 0 I (a)( 44)(A)(iv) of the Act. If a benefic iary d irect ly s uperv ises other 
employees, the beneficiary must also have the authority to hire a nd fire those employees, or 
recommend those actions, and take other personnel actions. 8 C.F.R. § 214.2(1)(1)(ii)(B)(J). 
The Petitioner has not claimed that the Beneficiary acts as a function manager abroad. It states that 
he spends only 22% of his time on personnel functions, while many of his other duties are described 
in ambiguous terms that may or may not involve personnel supervision. Accordingly, the record 
does not indicate that the Beneficiary is primarily s upervising subordinate personnel. Nevertheless, 
we will address the Petitioner's claim that the Beneticiary supervises s ubordinate managers and 
professionals. 
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Maller o(T-Y-1-T- . LLC 
The Petiti oner sub mitted the foreign comp any's orga nizati onal chart, which shows that the 
Beneficiary superv ises nine emp loyees of It attached another chart identifying those 
statT as a prod uctio n/development manager , an ollice manager , a sales/customer service emp loyee, a 
bookkeeper , and fi ve production workers. The attac hed chart also incl uded brief job descriptions tor 
the empl oyee s. According to these job desc riptions , the production /development manage r develops 
new products based on customer requirements, schedules product ion, a nd trains new emp loyees, 
while the office manager "supervises and man ages the company," is respo nsible for the compa ny's 
organization and regulations, daily management , and personnel duties such as hirin g, promoting and 
laying off employees, duties wh ich appear to overla p with the responsib ilities assigned to the 
Beneficiary. 
However , in response to a reque st for evi dence · (RFE), the Petitioner submitt ed cop ies of 
employment agre ements for the foreign sta ff. According to the employment agreeme nts, 
hired seven of the nine staff lo r "labor atory staff position s." The em ploym ent agree ment lor 
the oftice manager indicates that this individu al was hired "tor laborat ory staff position[] and sales 
executiv e," and the emp loyment agree ment for the bookkeeper states tha t he/she was hired "tor 
labora tory s taff position[] and Sales Back office ." The Petitioner must resolve this inconsistency in 
the record wit h independent, objec tive evidence pointi ng to where the truth lies. Maller of Ho, 19 
I&N Dec. 582, 59 1-92 (B IA 1988). The Petitioner did not exp lain why the job titles on the 
employment agre ements do not match the job title s provided in the foreign entity's organizationa l 
chart. Without an explanation tor these discr epancies , we cann ot determine whether the origina l job 
titles and job duties provided arc credible. Rath er, it appear s that all emp loyee s may work in a 
laboratory setting rather than prov iding support for other operationa l act ivities . For this reason, we 
cannot determine that the empl oyees with manager ial job title s are actuall y ac ting as s uperv isors or 
managers. 
In evalu at ing whether a ben eficiary manages profess ional empl oyees , we must evaluate whether the 
subordin ate positio ns require a bacca laure ate degree as a minimum for entry into the field of 
endeavor. C.f 8 C.F .R. § 204 .5(k)(2) (defini ng "profession" to mea n "any occup ation for which a 
U.S. baccal aureate degree or its fore ign equivalent is the minimu m requirement for entry into the 
occu pation"). Section I 0 I (a)(32) of the Act, states that "[t ]he term pn~fess ion shall include but not 
be limit ed to arc hitects, engineers, lawye rs, physicians, surgeon s, and teachers in ele mentary or 
secondary sc hoo ls, college s, acade mie s, or semin aries." 
The Petitioner provided copies o f res ume s for the foreign enttty ·s employees. The employee 
resume s indic ate that many of them have at least a bachelor's deg ree in che mistry or related field , 
but some attended on ly juni or co llege . While some of the emplo yees are likely profess ionals, the 
record doe s not contain a detailed and consistent acco unt of the foreign entity' s s tructur e or the 
actual duties performed by the subo rdinate perso nnel. Finally , as noted , even ass umi ng that some of 
the positi ons qualify as professiona l positions , the Petitioner allocated only 22% of the Benef ici ary's 
3 The Petitioner has stated at times in the record that "has more than 20 professionals holding doctoral and 
master's degrees working in its R&D ream." This statement is not supported by the foreign entity's organizational chart 
or payroll records, and the Petitioner has also stated multiple times that the company has nine employees. 
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Maller ofT-Y-1-T~ . LLC 
time to personnel-related duties and we cannot determine that he acts primarily as a personnel 
manag er. 
In determining whether the Beneticiary has bee n employed in a managerial capacity abroa d, we 
must take into acco unt the reasonable needs of the organization and . will not rely on the company's 
size alone. See section 10 I (a)( 44)(C) of the Act. However, it is appropriate for USCfS to consider 
the size of the company in conjunction with other relevant factor s, such as the absen ce of employees 
who perform the non-man ager ial or non-executive operations of the company. fctmily Inc. v. 
USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D. D.C. 
200 I). The size of a company may be especiall y relevant when USC IS notes discrepanc ies in the 
record. See Systronics, 153 F .. Supp. 2d at 15. 
The record indicates that manufacturers and distribut ed compounds. Even 
though the Petitioner establi shed that the foreign entity has nine employees, it provided vague 
descriptions of the Benefici ary's duties, and did ' not provide a clear or consistent description of the 
duties performed by his s ubordinate staff. The foreign entit y reasonab ly requires research and 
production staff, as well as sales, marketing , purchasing , customer support, distribution and 
admini strati ve staff. The record does not show that the Bene ficiar y, whose job duties ap pear to 
include some purchasing and sa les activities, is relieved from the performance of non-managerial 
duties requir ed for the company's day-to-day operations. In fact, as noted, the submitted 
employm ent agreements indicat e that all of his subordinates are labora tory staff. The Petiti oner has 
not established that the foreign entity has a reasonable need for the Beneficiary to allocate his time 
primarily to higher-level manage rial duties associated with strategy and 
business planning as 
cla imed, and does not otherwi se support a claim that his duties are primarily managerial in nature. . 
For the reasons discussed, the Petitioner has not established that the Beneficiar y has been emp loyed 
abroad in a managerial capacit y. 
III. U.S. EMP LOYMENT IN A MANAGERIAL CAPAC ITY 
The remaining issue is .wheth er the Petitioner establi shed that it would e mplo y the Benefi ciary in a 
manageri al capacity in the United States. Specifically , the Petitioner claims that it will employ the 
Beneficiary as 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 primaril y responsible for managing an "essent ial function " 
within the organization. See section IOI( a)(44)(A)( ii) of the Act. If a petitione r claims that a 
beneficiary will manage an essential function , it must clearly describe the duties to be perfo rmed in 
managin g the esse ntial function. In addition, th~ petitioner must de monstrate that "(I) the function 
is a clearly detined activity; (2) the function is ' esse ntial,' i.e., core to the organi zation; (3) the 
beneficiar y will primarily manage, as opposed to perfo rm, the function; (4) the beneficia ry will act 
at a senior leve l within the organ izat ional hierarchy or with respect to the function managed; and (5) 
the beneficiary will exercise discretion over the function's day-to-day operations. " Malter of C­
Ine., Adopted Decision 2017-05 (AAO Nov. 8, 20 17). 
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Maller ofT-> '-1-T-. LLC 
The Petitioner indicates that the Beneficiary will· be employed in the newly created position of 
U.S./China business development manager. The Petitioner, which does business as 
has been focused on the import and distribution of parts used in radi o-co ntrolled toys and vehicles. 
The Petiti oner explained that its business has recently becom e less profitable, so it now seeks to 
transfer the Beneficiary to the United States to ma)lage "the essential function of U.S . market 
development for -based ... products." 
The Petitione r described the Beneficiary's propos ed duties as: 
I. Iden ti fy business objectives and financi al targets for the U.S. company (20% ); 
2. Oversee the proce ss of identif ying new customers in the U.S. for -based 
chemicals, reagents, its chemical 
derivatives and produc ts (15%); 
3. Oversee the proces s of identifying the potential need s for U.S. products , s uch as 
high purity chemic al reagents and mechanical and ·electrical products, to be 
exported to China ( 15%); 
4. Monitor the research and production process in China for develop ing new 
technologies and customized products per the requir eme nts of U.S. customers 
(8%); 
5. Oversee the team of scientists, researchers and support staff in Chi'na to develop 
new technologies and customized products per the requirements of U.S. 
customers ( 12% ); 
6. Collabo rate with the General Manager in the U.S. company and oversee the 
process of developing a sales team as well as expanding the company's current 
support team, including utilizing external professional consultants to help grow 
the U.S. business (20%); · 
7. Maintain regular communications with the parent company's Internationa l Tra de 
Department to help manage sales, production planning, export and distributi on 
activ ities in furtherance of the U.S. business (I 0%). 
The Petiti oner emphasized that the Beneficiar y's primary focu s will be on "opening the U.S. market 
for the products " and that he will not have any imm ediate supe rvisory respo nsibilities , 
although the company intend s to recruit one or two salesper sons with a chemistry background to 
support ' and to assis t t he Beneficiary \vith operation al and 
administrative tasks. The Petitioner also stated that the Benefici ary will work prim ari ly with the 
foreign entity's sales and customer service employee and rely on other China-based 
staff to help carry out operati ona l and administrative tasks. 
The Petitioner ' s initial letter included a narrative three-year busine ss plan descr ibing the company's 
planned business activities and sales goals on a quarterly bas is through 2020 for its and RC­
related produ cts. This business plan indicated that the company would hire "one or two" sales staff 
shortly after the Beneficiary's arrival, but later , in response to the RFE, the Petitioner stated that it 
would not hire a sales person until "US business begins to pick up." At that time , the Peti tioner also 
. noted that it had not yet applied to the Chinese gove rnment authorities to export 
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Mauer ofT- Y-1- T-. LLC 
products to the United States, and indicated that it had just begun "researching the permitted 
chemicals per U.S. customs, the documents required and the processes involved." 
The Petitioner must establish that all eligibilit y requirements for the immigration benefit have been 
satisfied hom the time of the fi ling and continuing through adjudication. 8 C.F.R. § 103.2(b)( l). 
Here, the Petitioner has not shown that it was prepared to sell the foreign entity's products in 
the United States or shown how a business still at the research phase would require the Benefici ary 
to perform primarily managerial duties upon his arrival. Many of the business development duties 
outlined in the b usiness plan require direct interactions w ith potential customers to market and 
promote the products and determine customer requirements and the Petitioner has not shown 
how the foreign employees would assist the Beneticiary with these non-managerial duties. 
We agree with the Petitioner that it is appropriate to consider staff employed within the broader 
international. organization when analyzing whether a Beneficiary will be relieved from performing 
non-managerial duties. Here, although the Petitioner indicates that the Beneficiary wi II rei y on the 
foreign entity's staff to relieve him from primarily performing the duties associated with the 
development of the U.S. market, we have already addressed the deficiencie s in the record with 
respect to the foreign entity's staffing. As noted, the Petitio ner has not provided a consistent 
description of' the duties performed by the foreign s t all~ and it has not indicated the speci fie tasks 
individual employees would perform with respect to the development of the U.S. market. Simply 
stating that the foreign employees "would provide an important administrative function to the 
beneficiary in his proposed role" is not sutticient. 
Although the Petitioner indicates that it is seeking to expand into a new market, it must still show 
that it can immediately employ the Beneficiary in a position in which he would primarily perform 
managerial duties. While performing non-qualifying tasks necessary to produce a product or service 
will not automatically disqualify a heneficiary as long as those tasks are not the majority of a 
bcnef~ciary 's duties, a petitioner still has the burden of establishing that a beneficiary will 
"primarily" perform managerial or executive duties. See section I 01 (a)(44) of the Act. Whether a 
beneficiary is 
a "function" manager turns in part on whether the petitioner has sustained its burden of 
proving that their duties a re "primarily" manageria l. See Matter of Z-A-, Inc .. Adopted Decision 
2016-02 (AAO Apr. 14, 2016). 
The Beneficiary may possess the authority to set goals for this new division of the U.S. business, but 
the Petitioner has not shown that it has an immediate need for him to perform primarily managerial 
duties associated with the market development function, rather than non-managerial market research, 
promotional , and sales functions. The Beneficiary's proposed duties are described in broad terms 
and the Petitioner does not include a description of the actual tasks he \viii perform on a day-to-day 
basis upon his arrival to the United States. 
Finally, in support of its claim that the development of the U.S. market tor the foreign entity's 
products is an "essential function" within the international organization, the Petitioner submits 
several documents that discuss the market tor products worldwide. This evidence does not 
support the Petitioner's business expansion plans or support its claim that there is an untapped 
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Maller ofT-Y-1-T-. LLC 
market for Chinese-manufactured products in the United States. According to these 
documents, the United States is the world' s largest producer of , most .of the products 
consumed in the United States are manufactured domestically, and half of the produced in the 
United States is exported. The Petitioner highlights a passage in a ·u.S. Geological Survey report 
indicating that China is among the countries that have imported the largest quantities of retined 
from the United States, with imports to China likely to rise because that country has "low­
grade reserves" and an increasing demand for The Petitioner's emphasis o
n the market 
for U.S.-produced in China is unclear, because the Petitioner does not claim that it intends to 
export U.S.-made products to China. Further, this information raises questions about the 
feasibility of the Petitioner's plan to import Chinese-produced products to the United States, 
and its need for a function manager to develop the U.S. market for these products. 
For the reasons discussed, the Petitioner has not established that it will employ the Beneficiary as a 
function manager in the United States. 
IV. CONCLUSION 
The appeal will be dismissed because the Petitioner did not establish that the Beneficiary has been 
employed abroad or would be employed in the United States in a managerial capacity . 
ORDER : . The appeal is dismissed. 
Cite as Matter ofT- Y-1-T-. LLC, I 0 # 1187424 (AAO May 8, 20 18) 
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