dismissed L-1A Case: Import/Distribution

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-D-A-G- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 9, 2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an importer and distributor of seeks to continue the 
Beneficiary's temporary employment as its operational manager under the L-lA nonimmigrant 
classification for intracompany transferees. 1 See Immigration and Nationality Act (the Act) section 
101(a)(15){L), 8 
U.S.C. § 110l(a)(15)(L). The L-lA 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 the 
extended petition. 
On appeal, the Petitioner states that the Beneficiary will control the company ' s operations and 
exercise his discretionary authority in developing the company's management practices and policies. 
The Petitioner also states that the Beneficiary currently oversees five employees. 
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 managerial or executive capacity 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 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 instant petition seeks to continue employment of a beneficiary who came to the United States to open a new office. 
The term "new office " refers to an organization which has been doing business in the United States for less than one 
year. 8 
C.F.R. § 214 .2(1)(1)(ii)(F). The regulation at 8 C.F .R. § 214.2(1)(3)(v)(C) allows a ''new office" operation no 
more than one year within the date of approval of the petition to support an executive or managerial position . 
Matter of A-D-A-G- LLC 
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 Director found that the Petitioner did not establish that the Beneficiary would be employed in 
the United States in a managerial capacity.2 
The term "managerial capacity" is defined as "an assignment within an organization in which the 
employee primarily": 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 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; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee is 
directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. 
Section 101(a)(44)(A) ofthe Act. In addition, "[a] first-line supervisor is not considered to be acting 
in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional." !d. 
A. Staffing 
In the instant matter, the Director's primary reason for denial was based on a finding that the 
Petitioner did not establish that the Beneficiary's subordinates are managers, professionals, or 
supervisors. Therefore, while we will address the Beneficiary's job description below, we will first 
2 
The Petitioner does not claim that the Beneficiary would be employed in an executive capacity. 
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Matter of A-D-A-G- LLC 
examine the Petitioner's organizational structure, the duties of the Beneficiary's subordinate 
employees, the presence of other employees to relieve the Beneficiary from performing operational 
duties, the nature of the business, and any other factors that will contribute to understanding the 
Beneficiary's actual duties and role in the business. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) 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 "first line supervisor is not considered to be acting in a managerial capacity 
merely by virtue of the supervisor's supervisory duties unless the employees supervised are 
professional." Section 101(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. 8 C.F.R. § 214.2(l)(l)(ii)(B)(3). 
Here, the Petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, claiming seven 
employees and a gross income of $370,233. The Petitioner provided an organizational chart that 
depicts a general manager at the top of the staffing hierarchy with the Beneficiary and one other 
employee - a marketing manager - positioned at the next tier of the hierarchy as the general 
manager's subordinates. The chart also depicted an administrative ass~stant, two sales 
representatives, and a warehouse specialist as the Beneficiary's subordinates. We note that the 
Petitioner's 2016 quarterly federal tax return for the third quarter indicates that the Petitioner had no 
more than six employees at the time of tiling, which is inconsistent with the Petitioner's original 
claim in the petition. The record as presently constituted does not resolve this inconsistency with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). As such, it is unclear which one of the seven positions listed in the chart was 
vacant at the time of filing and how the vacancy affected the Petitioner's ability to relieve the 
Beneficiary from having to carry out its daily operational and administrative tasks. 
We further note that the record does not establish that the administrative assistant, two sales 
representatives, and warehouse specialist, whom the organizational chart depicted as the 
Beneficiary's subordinates, possess educational credentials that are consistent with those of 
professional employees. 
In evaluating whether a beneficiary manages professional employees, we must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
\ 
endeavor. C.f 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a 
U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation"). Section 101(a)(32) ofthe Act, states that "[t]he termprofession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." Therefore, we must focus on the level of 
education required by the position, rather than the degree held by subordinate employee. The 
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Matter of A-D-A-G- LLC 
possession of a bachelor's degree by a subordinate employee does not automatically lead to the 
conclusion that an employee is employed in a professional capacity. 
The Director analyzed each of the Beneficiary's subordinates' duties and educational credentials and 
concluded that the evidence does not establish that the Beneficiary would primarily perform 
managerial duties that involve overseeing supervisory, professional, or managerial employees. 
We agree with the Director's finding. The employee job descriptions that were provided in response to 
the RFE indicate that the administrative assistant and warehouse specialist require two years of 
experience while the sales associates require no experience at all. The Petitioner did not indicate that 
any of the Beneficiary's subordinates require a bachelor's degree and the organizational chart 
submitted in support of the petition did not depict them as overseeing other employees. Although the 
RFE response contains the Petitioner's updated organizational chart, which indicates that the Petitioner 
hired additional employees and created new positions that altered the Petitioner's organizational 
hierarchy, the Petitioner is required to 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). Here, the record does not show that, at the time of filing, the Petitioner had a staffing 
hierarchy where the Beneficiary would oversee the work of supervisory, professional, or managerial 
employees, as required of a personnel manager. Section 10l(a)(44)(A)(ii) of the Act. We note that 
overseeing a staff that is comprised of non-supervisory, non-professional, and non-managerial 
employees does not satisfy the statutory requirements of managerial capacity. 
Alternatively, 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. The term 
"essential function" is not defined by statute or regulation. If a petitioner claims that a beneficiary 
will manage an essential function, a petitioner must clearly describe the duties to be performed in 
managing the essential function, or more specifically, identify the function with specificity, 
articulate the essential nature of the function, and establish the proportion of a beneficiary's daily 
duties attributed to managing the essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In addition, a 
petitioner's description of a beneficiary's daily duties must demonstrate that the beneficiary will 
manage the function rather than perform duties related to the function. See Matter of' Z-A -, Inc., 
Adopted Decision 2016-02 (AAO Apr. 14, 2016). 
In this matter, the Petitioner has not provided sufficient evidence to demonstrate that the Beneficiary 
manages an essential function. The Petitioner has neither identified an essential function with 
specificity nor established which of .the Beneficiary's job duties are consistent with managing an 
essential function. 
B. Duties 
When examining the managerial capacity of the Beneficiary, we also look to the Petitioner's 
description of the job duties. The Petitioner's description of the job duties must clearly describe the 
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Matter of A-D-A-G- LLC 
duties to be performed by the Beneficiary and indicate whether such duties are in a managerial or 
executive capacity. See 8 C.P.R. § 214.2(1)(3)(ii). 
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). Second, the Petitioner must 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. 
In a supporting document, the Petitioner listed eleven of the Beneficiary's key responsibilities. In its 
subsequent response to the Director request for evidence (RFE), the Petitioner provided a nearly identical 
list of duties and responsibilities, supplementing that information with time allocations based on the 
Petitioner's phase of operations over the course of the upcoming year. 
The Petitioner claimed that the Beneficiary would implement and manage operational plans and assist 
the general manager in developing strategic plans for operations. The Petitioner did not define its 
f'operational plans" within the context of its import arid distribution business, nor did it specify the types 
of tasks involved in assisting the general manager with "strategic plans" or provide examples of 
"strategic plans" to convey an understanding of the nature of the Beneficiary's activities. 
The Petitioner also claimed that the Beneficiary would manage the Petitioner's financial and budget 
activities, but did not specify any actual tasks associated with this broad job responsibility. Moreover, 
the Petitioner's appeal brief contains a list of "technical skills" that the general manager is required 
to have in order to carry out the duties of his position. The list states that the general manager, not 
the Beneficiary, will manage the Petitioner's ·financial resources, which includes making 
discretionary decisions about how finances will be allocated. 
The Petitioner was equally vague in stating that the Beneficiary would manage "general operations" as 
they relate to sales and services, providing no explanation as to the specific components involved in 
"general operations" or the Beneficiary's specific role with respect to sales and services. Although the 
Petitioner stated that the Beneficiary would consult with the general manager and the foreign entity 
regarding its operations, it did not explain the nature of the Beneficiary's input or explain why the 
Beneficiary would contact the parent entity when the general manager is in charge of the operations. 
Likewise, the Petitioner did not specify the underlying job duties associated with long-range planning 
and developing strategies and directing market research. The Petitioner did not state what business data 
the Beneficiary considers in making such strategies or specify who provides the Beneficiary with the 
necessary data or who actually conducts the market research. 
Further, while the Petitioner claimed that the Beneficiary will direct the "efficacy of wholesale, export[,] 
and distribution activities" and "dissemination of technical support," it did not elaborate on the level of 
the Beneficiary's involvement in the sales-related activities or state who provides the technical support 
associated with the products sold. Without information as to the individual(s) carrying out the 
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Matter of A-D-A-G- LLC 
underlying operational tasks, it is unclear whom the Beneficiary would be directing. Reciting the 
Beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Lastly, the Petitioner did not establish that negotiating contracts for the sale of its merchandise or hiring, 
training, and managing staff are managerial job duties within the context of this organization. Despite 
referring to the staff whom the Beneficiary would hire, train, and manage as "professionals," as discussed 
above, the record does not corroborate this claim. The Petitioner must support its assertions with 
relevant, probative, and credible evidence. See Matter o.fChawathe, 25 I&N Dec. 369, 376 (AAO 201 0). 
On appeal, the Petitioner contends that the Beneficiary currently supervises five employees and is 
thereby "responsible for managing the company." Although the Petitioner states that the Beneficiary 
will continue to "oversee compliance with commercial, logistics, and environmental aspects to its 
products and services" as well as "establish agreements with strategic business partners," it claims 
that the Beneficiary's "core duties" are "more relq.ted to the management of the current and 
prospective employees," who will continue to relieve the Beneficiary from having to primarily 
perform non-managerial, operational job duties. 
We find that the Petitioner's statements do not overcome the Director's findings. Namely, the 
Petitioner does not elaborate on the previously provided job description and it neither claims nor 
provides evidence to show that the Beneficiary's subordinates are supervisory, professional, or 
managerial employees. As previously noted, assertions must be supported by relevant, probative, 
and credible evidence. Chawathe, 25 I&N Dec. at 376. Further, while the Petitioner claims that the 
Beneficiary will hold weekly meetings to evaluate prospective employees, this duty does not 
establish that the Beneficiary will be employed in a managerial capacity. Despite the implied 
discretionary authority that is inherent to making hiring decisions, it is unclear how this authority 
alone is sufficient to establish the Beneficiary's performance of primarily managerial duties, 
particularly when the hiring function is performed with respect to non-supervisory and non­
professional subordinates. 
Due to the lack of evidence establishing the actual tasks the Beneficiary would perform we cannot 
conclude that his duties would be primarily of a managerial nature. 
III. CONCLUSION 
In light of the various deficiencies catalogued above, the Petitioner has not established that it would 
employ the Beneficiary in a managerial capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-D-A-G- LLC, ID# 484061 (AAO Aug. 9, 2017)