dismissed L-1A Case: Import/Export

MATTER OF M-I-E- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 20, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an importer and exporter of electronic equipment and auto parts, seeks to temporarily 
employ the Beneficiary as its general manager under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act)§ 101(a)(l5)(L), 8 U.S.C. 
§ 1101(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 an executive or managerial capacity. 
The Director, Vermont Service Center, denied the petition concluding that the Petitioner would not 
employ the Beneficiary in a managerial or executive capacity in the United States. 
The matter is now before us on appeal. In support of its appeal, the Petitioner disputes the Director's 
decision, asserting that the Beneficiary is employed in a managerial capacity. The Petitioner 
provides the names, position titles, and job descriptions for its employees. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
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, executive, or specialized knowledge 
capacity. Jd. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are ,,qualifying organizations as defined in paragraph 
(1)(1)(ii)(G) ofthis section. 
Matter of M-1-E- Inc. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that 
the alien's prior education, training, and employment qualifies him/her to 
perform the intended services in the United States; however, the work in the 
United States need not be the same work which the alien performed abroad. 
The regulation at 8 C.P.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the 
opening of a new office, may be extended by filing a new Form 1-129, accompanied by the 
following: 
(A) Evidence that the United States and foreign ent1t1es are still qualifying 
organizations as defined in paragraph (1)(1 )(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence of 
wages paid to employees when the beneficiary will be employed in a 
management or executive capacity; and 
(E) Evidence of the financial status ofthe United States operation. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary will be employed in a managerial or executive capacity. The Petitioner does not claim 
that the Beneficiary will be employed in an executive capacity. Therefore, we restrict our analysis to 
whether the Beneficiary will be employed in a managerial capacity. 
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Matter of M-1-E- Inc. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
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 
r 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 
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(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. 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. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101 (a)( 44 )(C) of the Act. 
A. Evidence of Record 
The Petitioner filed the Form 1-129 claiming ten current employees and an estimated net annual 
income of $200,000. 
In support of the Form 1-129, the Petitioner provided a statement claiming that the Beneficiary 
initiated three location changes and increased the Petitioner's sales income. The statement included 
the following list of the Beneficiary's job duties: 
• He will continue to be accountable for the entire operation of the corporation. 15% 
• He will continue to be accountable for the implementation of board decisions, 
initiatives, and to remain the outstanding operation of the company, with the 
assistance of senior management. 5% 
• He will continue to review analysis of activities, cost and operations and will forecast 
data to determine the progress achieved by the company towards stated goals and 
objectives. 10% 
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Matter of M-1-E- Inc. 
• He will continue to control the financial aspect of the corporation including receiving 
and distributing funds and acquiring debts. 15% 
• He will continue to be in charge of obtaining new representation agreements. 5% 
• He will continue to oversee negotiations of substantial contracts and will conduct 
legal negotiations on behalf of the corporation. 20% 
• He will continue to communicate with the main company [Petitioner] to approve new 
investments in the U.S. 10% 
• He will continue to make decisions as to the areas in [sic] which concentrate 
marketing [sic] efforts and as to which methods to utilize to expand client base on 
research analysis due to the market trends and economic conditions. 10% 
• He will continue to be responsible for ensuring the execution of all the day[-]to[-]day 
activities necessary that will help achieve the company's goals and visions, managing 
the non-senior level employees. 10% 
The Petitioner also provided a job description for a chief executive officer, identifying the 
Beneficiary as the proposed employee for that position. The job duties listed under this position 
were as follows: 
• Responsible for the entire operations of the corporation and to lead the development 
ofthe Company's strategy[.] 5% 
• Responsible for implement [sic] managerial decisions and initiatives and to maintain 
the smooth operation of the company, with the assistance of senior management. 5% 
• Responsible for ensuring the execution of all the day-to-day tasks necessary to 
achieve the company's vision, managing the company's non-senior level employees, 
and "making things happen." 15% 
• To ensure the Company is appropriately organized and staffed and to have the 
authority to hire and terminate staff as necessary to enable it to achieve the approved 
strategy[.] 1 0% 
• The communicator role can involve the press and the rest of the outside world, as well 
as the organization's management and employees[.] 10% 
• The decision-making role involves high-level decisions about policy and strategy and 
ensure [sic] that expenditures of the Company are within the authorized annual 
budget. 10% 
• To presides [sic] over the organization's day-to-day, month-to-month, and year-to­
year operations[.] 1 0% 
• Responsible for approving high-level budgets prepared by upper management[.] 5% 
• Responsible for implementing and monitoring business strategy, and approving core 
corporate initiatives and projects. 5% 
• To assess the principal risks of the Company and to ensure that these risks are being 
monitored and managed. 5% 
• Sets the direction. Which market will the company enter? Against which 
competitors? With what product lines? . . . . 5% 
• Decides, sets budgets, forms partnerships, and hires a team to steer the company. 5% 
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(b)(6)
Matter of M-1-E- Inc. 
• To hire, fire, and lead the senior management tea. They in tum, hire, fire, and lead 
the rest ofthe organization. 5% 
• To resolve differences between senior team members, and keeps [sic] them working 
together in a common direction. 5% 
In a similar format, the Petitioner provided job descriptions for an export supervisor with a proposed 
salary of $31,200, and administrative manager with an actual salary of $26,000 paid to 
and for an executive assistant with a proposed salary of$29,120. 
The Petitioner also provided a copy of its organizational chart, depicting the Beneficiary at the top of 
the hierarchy as the company's general manager, followed by a manager, a secretary, and an 
administrative manager as the general manager's immediate subordinates. The chart depicted the 
manager as overseeing a sales person and a receiving and inspection employee and the assistant 
manager as overseeing a purchasing assistant and a billing assistant. The chart was accompanied by 
an employee list, which included each employee's name, position title, and salary. , The list 
identified rather than as the Petitioner's administrative manager and 
showed his salary as $29,120. The list also identified as the export supervisor and 
indicated that the assigned 
salary for this position is $26,000, as opposed to the proposed salary of 
$31,200, as indicated in the company-generated job description referenced above. Lastly, we note 
that the chart did not include an executive assistant, despite the fact that the Petitioner included a 
company-generated job description for this position, as indicated in the above paragraph. 
After reviewing the Petitioner's supporting evidence, the Director issued a request for evidence 
(RFE), pointing out that the Petitioner provided conflicting evidence with regard to the Beneficiary's 
proposed position. The Director observed that while the petition indicates that the Beneficiary will 
be employed in the position of general manager, the supporting evidence includes a job description 
for the Beneficiary as CEO; The Director also found that the Petitioner provided a deficient job 
description for the Beneficiary and asked the Petitioner to provide evidence to overcome this 
deficiency. · 
In response to the RFE, the Petitioner submitted a statement contending that the Beneficiary's 
proposed position is that of general manager rather than CEO. The Petitioner resubmitted the 
original supporting statement, which contained the job description for general manager, and added a 
second company-generated job description for the Beneficiary in his proposed position as general 
manager. The format and content ofthe latter job description are the same as those of the previously 
submitted job description for the position of CEO, with the only change being the Beneficiary's 
position title and proposed salary. The earlier job description indicated that the proposed salary 
would be $41,600, while the updated document indicates that the Beneficiary's salary is $42,900. 
The Petitioner provided similarly formatted company job descriptions for with a salary 
of$31,200, with a salary of$29,120, and with a salary of$18,200. 
Their respective position titles were identified as manager, administrative manager, and secretary. 
The Petitioner also provided employment agreements for the employees depicted in the original 
organizational chart, providing each employee's name, position title, and date of hire along with a 
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Matter of M-I-E- Inc. 
brief job description and proposed work schedule showing that each employee was hired to work on 
a full-time basis. 
The Director denied the petition, concluding that the Petitioner did not establish that the Beneficiary 
would be employed in the United States in a managerial or executive capacity. The Director noted 
that the Petitioner resubmitted an earlier job description, despite the Director's prior finding that the 
original job description lacked sufficient detail and did not establish that the Beneficiary would 
primarily perform managerial or executive job duties. 
On appeal, the Petitioner submits an appeal brief asserting that the Beneficiary establishes the 
policies and objectives and spends 60% of his time "overseeing corporate operations" with the goal 
of achieving "operational efficiency and profitability." The Petitioner also provided additional job 
descriptions for all of its employees and disclosed the direct superior of each employee, with the 
exception of the billing assistant whose direct superior was not identified. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that it would employ the Beneficiary 
in the United States in a managerial capacity. 
When examining the managerial capacity of the Beneficiary, we will look first to the Petitioner's 
description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). Published case law has determined that 
the duties themselves will reveal the true nature of the beneficiary's employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a.ffd, 905 F.2d 41 (2d. Cir. 1990). As such, 
the Petitioner must provide a job description that clearly describes the duties the Beneficiary would 
perform and indicate whether such duties are in a managerial capacity. !d. 
As indicated in the Director's decision, the definitions of executive and managerial capacity each 
have two parts. First, the Petitioper must 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 or executive 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, Inc. v. INS, 940 F.2d 1533. 
In the matter at hand, while the Petitioner claims that the Beneficiary would be employed in a 
managerial capacity, the job descriptions it provided originally and in response to the RFE are not 
sufficient to support its claims. While the Petitioner's original supporting evidence included two job 
descriptions - one which was part of the initial supporting statement and a second description 
formatted to appear as the company's official position description for the job title of CEO- neither 
job description adequately conveyed a comprehensive understanding of the Beneficiary's actual 
daily tasks. 
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Matter of M-1-E- Inc. 
The job description that was incorporated into the. supporting statement was largely comprised of 
vague assertions about the Beneficiary's discretionary authority with respect to all business matters, 
broadly stating that 15% of the Beneficiary's time would be allocated to maintaining accountability 
"for the entire operation of the corporation" and that 1 0% of his time would be allocated to 
"ensuring the execution of all the day[-]to[-]day activities necessary [to] achieve the company's 
goals and visions and managing non-senior level employees." The Petitioner did not clarify what 
specific tasks these broad responsibilities would entail, differentiate between tasks that are and are 
not representative of the Beneficiary's oversight of the company's operations, specify the "goals and 
visions" the Beneficiary aims to achieve, state precisely who are its "non-senior level employees," or 
explain how overseeing such employees qualifies as a managerial job duty. Moreover, merely 
claiming that the individual who assumes the top-most position within the Petitioner's organizational 
hierarchy is responsible for the company's operation and its goals reveals no probative information 
about the nature of the underlying tasks the Beneficiary would perform. The Petitioner also 
neglected to explain how "obtaining new representation agreements," which would consume another 
5% ofthe Beneficiary's time, qualifies as a managerial job duty. 
The Petitioner is equally vague in stating that 15% of the Beneficiary's time would be allocated to 
controlling the company's finances by distributing funds and acquiring debt. As the Petitioner does 
not identify specific circumstances that require the Beneficiary's fund distribution authority or 
specify situations when the Beneficiary incurs debt on behalf of the Petitioner, the degree of the 
Beneficiary's involvement in the Petitioner's daily operational tasks is unclear. We cannot conclude 
that the Beneficiary's use of discretionary authority to distribute funds and acquire debt in the course 
of daily business operations equates to the performance of managerial tasks. It is likely that anyone· 
who assumes the senior-most position within an organization would have a high degree of discretion 
over that operation's finances. However, such authority in itself is not sufficient to establish that the 
underlying duties of the senior-level manager are primarily managerial in nature. Also, while the 
Petitioner claimed that 20% of the Beneficiary's time would be spent overseeing contract 
negotiations and conducting "legal negotiations," the Petitioner did not explain how the Beneficiary 
would conduct his oversight or specify the types of "legal negotiations" in which the Beneficiary 
would partake. The Petitioner also did not specify what types of "new investments" the Beneficiary 
would seek to get approved or explain how these "new investments" are related to the operation of 
the existing U.S. entity. 
As stated in the Director's decision, the Petitioner must provide a detailed statement about the 
Beneficiary's actual daily job duties in order to determine that the proposed employment meets the 
statutory definition. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. The Petitioner cannot 
meet its burden of proof either by providing conclusory assertions regarding the Beneficiary's 
employment capacity or by making vague claims about the Beneficiary's job responsibilities or 
broadly-cast business objectives. Here, the above job description attempts to account for 65% of the 
Beneficiary's time through the use of broad statements, which focus on the Beneficiary's use of 
discretionary authority but neglect to state what actual tasks that the Beneficiary would perform. 
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Matter of M-1-E- Inc. 
In looking to the official company-generated job description, which also includes a percentage 
breakdown, the Petitioner similarly placed primary focus on the Beneficiary's senior-level position 
rather than the Beneficiary's actual daily tasks. As with the above job description, the official duty 
list broadly states that the Beneficiary will assume responsibility "for the entire operations of the 
corporation," ensure "the execution of the day-to-day tasks necessary to achieve the company's 
vision," and manage "the company's non-senior level employees." Not only are these statements 
vague, as previously discussed, but the time allocations depicted in the official job description are 
inconsistent with those provided in the job description that was included in the Petitioner's 
supporting statement. Namely, while the job description in the supporting statement indicates that 
15% of the Beneficiary's time would be spent being accountable for the company's entire operation, 
the official job description allocates only 5% to this vague job duty. Similarly while the former job 
description indicates that 10% of the Beneficiary's time would be allocated to ensuring execution of 
daily activities and managing non-senior personnel, the official job description allocates 15% of the 
Beneficiary's time to the same job duties. The two job descriptions are also inconsistent with regard 
to the Beneficiary's role in contract and legal negotiations. Namely, while the job description in the 
supporting statement allocates 20% of the Beneficiary's time to negotiating "substantial contracts" 
and conducting "legal negotiations on behalf of the company," neither of these was included in the 
official company job description, which listed multiple budget-related job duties, while the other job 
description only discussed the Beneficiary's financial involvement in terms of fund distribution and 
debt acquisition, making no mention of the Beneficiary's role in setting or approving budgets. The 
Petitioner has not resolved these numerous inconsistencies in the record by independent objective 
evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Beyond the required description of the jolJ duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties o{ 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 a beneficiary's actual duties and role in a 
business. 
In conducting a review of the totality of the evidence, we observed other discrepancies and 
anomalies both in the initially submitted documents and in the job descriptions provided most 
recently on appeal. With regard to the former, while the Petitioner submitted official company job 
descriptions and proposed salaries for the export supervisor, the administrative manager, and the 
executive assistant, salaries for the export supervisor and the administrative manager as shown in the 
Petitioner's employee list are not consistent with those shown in the official company job 
description. Namely, while the official company job descriptions indicate that salaries for the export 
supervisor and the administrative manager are $31,200 and $26,000, respectively, the employee list 
indicates that the employees who occupy these two positions actually earn $26,000 and $29,120, 
respectively. Further, while the official company job description includes a list of job duties and 
salary of $29,120 for an executive assistant, the employee list does not include the position title of 
executive assistant and shows that the only employee who earns a salary of $29,120 is the 
administrative manager. While the information in the company's payroll register, which was 
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(b)(6)
Matter of M-1-E- Inc. 
submitted in response to the RFE, matches the information provided in the Petitioner's employee 
list, the Petitioner has not resolved the various inconsistencies in the record by independent objective 
evidence. !d. at 591-92. 
In addition, the information provided in the Petitioner's appeal brief indicates that the Petitioner's 
secretary, export supervisor, assistant manager, sales person, "receiving inspect," and purchase 
assist(\nt all report directly to the "Manager." While the Petitioner's employee list and 
corresponding organizational chart both identify as having the position title of manager, 
the chart indicates that direct subordinate is an export supervisor whose direct 
subordinates are a sales person and the "receiving inspect" employee. The chart does not indicate 
that the secretary, assistant manager, or the purchase assistant report to thereby creating 
yet another unresolved inconsistency in the record with regard to the Petitioner's organizational 
hierarchy. !d. 
In light of the deficiencies discussed above, we are unable to fully assess the Petitioner's staffing and 
organizational hierarchy. We are thereby precluded from gaining a meaningful understanding of 
how the Petitioner operates, what role the Petitioner's staff play in carrying out its daily operational 
and administrative tasks, and how the organizational hierarchy actually supports the Beneficiary in a 
managerial position. As such, we find that the Petitioner has not established that the Beneficiary will 
be employed in a primarily managerial capacity and on the basis of this conclusion the instant 
petition cannot be approved. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reason. In visa petition 
proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U .S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 
2013 ). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-1-E-, Inc., ID# 49466 (AAO Oct. 20, 20 16) 
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