dismissed L-1A Case: Import/Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF BL TB-A- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 13,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a plastic materials and products importer and exporter, seeks to continue the 
Beneficiary's temporary employment as its marketing and sales manager under the L-1 A 
nonimmigrant classification for intracompany transferees. 1 See Immigration and Nationality Act 
(the Act) section IOI(a)(IS)(L), 8 U.S.C. § IIOI(a)(IS)(L). The L-IA classification allows a 
corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign 
employee to the United States to work temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary would be employed in a managerial or executive capacity 
under the extended petition. 
On appeal, the Petitioner submits additional evidence and asserts that the Director placed undue 
emphasis on the small size of the company in determining that the Beneficiary will not perform 
primarily managerial duties. The Petitioner asserts that the Beneficiary will manage "the essential 
function of brand development and marketing." 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility tor the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application lor 
admission into the United States. Section IOI(a)(IS)(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 atliliate thereof in a managerial or executive capacity. !d. 
1 
The Petitioner previously filed a "new office" petition on the Beneticiary's behalf which was approved for the period 
April 26, 2016, until April 25, 2017. A "new office" is an organization that has been doing business in the United Stales 
through a parent. branch, affiliate, or subsidiary 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 one year within the date of approval of the petition to 
support an executive or managerial position. 
Mauer of BITE-A- Inc. 
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). This evidence must demonstrate that the beneficiary will be employed in 
a managerial or executive capacity, as defined at sections IOI(a)(44)(A) and (B) of the Act, under 
the extended petition. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The sole issue to be addressed is whether the Petitioner established that the Beneficiary will be 
working in a managerial capacity. The Petitioner did not claim that the Beneficiary would be 
employed in an executive capacity; therefore, our analysis will address only the Petitioner's claim 
that the Beneficiary's proposed position would be in a managerial capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
IOI(a)(44)(A) ofthe Act. 
When examining the managerial capacity of a given beneficiary, we will look to the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the Beneficiary and indicate whether such duties are in a managerial or 
executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of the job duties, 
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 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. Duties 
Based on the definitions of managerial and executive 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 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, 940 F.2d at 1533. 
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Mauer of BLTB-A- Inc. 
The Petitioner provided a statement of the Beneficiary's duties at the time of tiling. Atier the 
Director informed the Petitioner that its statement was insufficient, the Petitioner resubmitted 
essentially the same job description, but added the percentage of time the Beneficiary would spend 
on each area of responsibility: 
• Report to the President/Acting President about our company's marketing and 
sales performance and manage the entire Marketing and Sales Department 
including developing policies and goals, overseeing the planning, development 
and execution of all the company's business and marketing and sales budget, 
strategies, and activities (35%). 
• Review the department's marketing operations and strategy and set up and define 
marketing and sales policies, procedures, and goals to ensure operations are 
running efticiently and smoothly and to generate revenue by increasing sales 
through successful marketing, and signing business deals and sales contracts 
directly with customers and other companies for our company (35%). 
• Delegate and control the works of the subordinates in the marketing and sales 
department. Delegate all the routine, day-to-day, and non-managerial tasks to 
subordinates for them to carry out the tasks and the needed services to achieve the 
goals. Review their works for compliance with established policies and 
objective[s] of the department. Evaluate their performance and exercise 
discretion to hire, dismiss, or promote/demote based on their performance ( 15% ). 
• Exercise discretion over the day-to-day marketing department's operations and 
ensure the company's marketing and sales strategy are properly implemented 
within the company's budget (I 0%). 
• Attend conferences and meet with other companies' executives to establish 
network and explore potential opportunity for marketing our company's products 
and services in the U.S. and international market (5%). 
We agree with the Director's determination that this description does not provide sufticient insight 
into the nature of the Beneficiary's day-to-day duties. The description conveys the Beneficiary's 
authority over the sales and marketing department, but is too broad and repetitive to clarify how the 
Beneficiary would spend his time on a regular basis. For example, the Petitioner indicated that the 
Beneficiary spends 35% of his time managing the entire department, including development of its 
policies and goals, another 35% of his time "reviewing" the department's operations and defining its 
policies procedures and goals," and 10% of his time "exercising discretion over" the department's 
day-to-day operations. All of these responsibilities appear to overlap and the description does not 
identify the specific tasks that will occupy the Beneficiary's tim~. Reciting the Beneficiary's vague 
job responsibilities or broadly-cast business objectives is not sutlicient; the regulations require a 
detailed description of the Beneficiary's daily job duties. The Petitioner has not provided any detail 
or explanation of the Beneficiary's activities in the course of his daily routine. The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. II 03, II 08 (E.D.N. Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
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Mallerof/3LTB-A-Inc . 
The Petition er did not provide any concrete examples of policies, strategies, or goal s the Beneficiary 
would develop and implement in support of its claim that he would spen d his time primari ly focused 
on higher-l eve l planning and decision-making respon sibilities associated with the company's sales 
and marketing department. In fact, the only specific tasks the Petitioner did mention , apa rt from 
hiring and training stan: included networking at industry conferences and signing sa les contracts, 
duties whi ch are more indic ative of an employee who perform s sales and marketin g tasks. The 
Beneficiary 's attendance at indu stry conferences is the only function he performs that the Petitioner 
corroborat ed with supporting evidence. 
On appeal , the Petitioner sub mits a revised job description indicating that the Benefic iary will 
allocate 35% of his time to "marketing strategy ," 40 % of his tim e to " business development," 15% 
of his time to personnel related duties, including hiring, training and coaching, and 10% of his time 
to "project management." The new description is just as broad as the earlier descrip tion, and 
contains numerous reference s to the Beneficiar y's development of policies, goals, strateg ies, and 
pursuit of business opportunitie s, without providing additional details regarding the spec ific tasks he 
will perform on a regular daily basis. 
Therefore , a lthough the Bene ficiary may make deci sions about the co mpan y's sales and marketin g 
activities, the record on app eal does not adequat ely show how his role require s him to s pend his time 
primarily on the broadly defined managerial dutie s. The fact that the Beneficiary will manage a 
department of a busines s as its senior emplo yee does not necessarily establish eligi bility for 
classification as an intracompan y transferee in a managerial capa city within the meaning of sectio n 
10l(a)( 44)(A) of the Act. Even though the Beneticia ry may exercise discretion over the Petitioner's 
day-to-da y marketing and sales operations and possess the requi site leve l of authorit y with respect to 
discretion ary dec ision-making , a broad overview of his respon sibiliti es is insu fficie nt to establish 
that his actual duties would be primarily managerial in nature as o f the date of filing. 
B. Staffing and Organizational Structure 
If starting leve ls are used as a factor in determining whether an indivi dual is acting in a manager ial 
or executiv e ca pacity, USC IS takes into acco unt the reaso nable needs of the o rganization, in light of 
the overall purp ose and stage of development of the organization . See sect ion I 0 I (a)(4 4)(C) of the 
Act. 
The Petitione r stated that it had seven employee s as of the date of filing on April 25, 2017. The 
Petitione r' s init ial organizational chart showed that the Benefi ciary s uperv ised a marketi ng & sales 
assistant · and a sales employee The chart depicted an opera tions dep artmen t 
with a similar structure (an operati ons manager who was on adm inistrati ve leave, two operations 
assistants , a nd an assistant). The chart also showed separate admi nistratio n and finance departments, 
each with no current employ ees. 
In respon se to t he RFE , in August 2017, the Petiti oner submitted a revised chart and explained that 
there has been cons istent staff turnover in its sa les a nd marketi ng depa rtment. Specitically , the 
Petitioner stated that both and quit their resp ective pos itions on April 30, 20 17, and 
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Maller of B L TB-A- Inc. 
indicated that and who was.reassigned from the operations assistant posit ion to the 
sales role, curre ntly held the assistan t and sales positions. The Petitioner indicated that both 
position s subord inate to the Beneticiary are professional in nature, and provided evidence of 
educational credentials for current and forme r em ployees. The Petiti oner stated that its tota l number 
of employees was six, and its organizational chart showed two vacancies in the opera tion s 
department , alo ng with three ongoing vacancies in the administration and finance departments. 
The Petit ioner state d that the marketing and sales assistant: carries out "all the routin e, day-to-day 
and non-m anage rial tasks" delegated by the Beneticiary; supervises and trains the sales person, 
collects data on customers, competitors and the Petitioner's market ; finds ways to discover 
prospective customers; provides sales torecasts; collects and analyzes data to evaluate marketing and 
sales goals ; performs market research SWOT analysis; identifies mark et trend s, pricing/business 
models , sales and methods of ope ration; evaluates current economic conditions; and reco mm ends 
changes to the Beneficiary regarding sales techniques, procedure s, or promotional efforts based on 
market research. 
Further, the Petitioner stated that the sa les employee performs "every day non-supervisory tasks," 
including presenting , promoting and selling the compan y's products to current and prospective 
customers, calling and visiting customers, establi shing customer relationships, coordinating sales with 
other departmen ts, tracking sales and status report s, and providing the marketing and sales ass istant 
with reports on customers' needs and interests and on potential for new products and services. 
The statu tory definition of "managerial capacity" allows for both "perso nnel managers" and 
" functi on managers." See sectio n I 0 I (a)( 44)(A)(i) and (ii) of the Act. Personnel m anage rs are 
required to primarily supervise and control the work of other supervisory, professional , or 
managerial employees. Contrary to the common understanding of the word "manag er," the statute 
plainly states that a "first line supervisor is not considered to be act ing in a manag eria l capacity 
merely by virtue of the supervisor's supervi so ry duties unless the emp loyees supervised are 
professional. ' ' Section 1 0 I (a)( 44)(A)( iv) of the Act. If a beneficiary direct ly superv ises other 
employees , the beneficiary must also have the authority to hire and . tire those .employees , or 
recommend those actions, and take other personnel action s. 8 C.F.R. § 214.2(1)( I )(ii)(B)(J). 
In this matter, the Petitioner has not establi shed that the Benefici ary· is prima rily a personnel 
manager. The Petitioner initi ally indicated that the Beneficiary will allocate 15% of his time to 
controlling the work of his s ubordin ates and another 10% of his time to exercising discretion over 
department opera tions , but the remainder of his duties were described in abstract term s and did not 
convey how much time he would spend on per sonnel-related activities. The position description 
submitted on appeal indicate s that substan tially more o f the Beneficiary 's respo nsib ilities involve 
supervis ion of subordinate s t afl~ but the Petitioner did not provide an exp lanation for the revised 
duty descripti on. Given that both descriptions account for I 00% of his time , we are not in a position 
to determin e whic h one more accurate ly ret1ects his ac tual dutie s. 
Nevertheless, eve n if the Petitioner established that the Beneficiary's duties are primari ly 
super visory in nature, it would need to demon strate that he wou ld direct subord ina te superv isory, 
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Mauer of BLTB-A- inc. 
professional, or managerial employees. The Petitioner's organizational chart shows a three-tiered 
structure within the marketing and sales department; however, the record does not support a finding 
that the marketing and sales assistant holds a supervisory role. The Petitioner states that this position 
is responsible for "supervis[ing] and train[ing] Sales" but all other duties assigned to the position 
involve market research and analysis. In fact, the Petitioner stated that this employee is assigned to 
carry out "routine, day-to-day and non-managerial tasks." The evidence does not establish that the 
marketing and sales assistant holds a managerial or supervisory position. 
The Petitioner also claims that the Beneficiary's subordinates hold professional positions. ln 
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 lield of 
endeavor. Cf 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 l0l(a)(32) of the Act, states that "[t]he term profession 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 pos.session 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 sales staff member employed at the time of filing had a degree in teaching Chinese as 
a foreign language, and the individual who later assumed the sales role has a degree in Japanese 
tourism. The Petitioner has not shown that the sales position requires a bachelor's degree in a 
specific relevant area of study. The Petitioner also provided educational credentials for three 
employees who have held the marketing and sales assistant position. However, we cannot determine 
based on the information submitted whether a bachelor'.s degree is required to perform the "routine, 
day-to-day tasks" of the marketing and sales department. 
On appeal, the Petitioner emphasizes that the Beneliciary "will continue to be responsible for the 
essential function of brand development and marketing" with authority over his "sales and markeiing 
teams." The term "function manager" applies generally when a beneficiary does not supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an 
"essential function" within the organization. See section I 0 I (a)( 44)(A)(ii) of the Act. If a petitioner 
claims that a beneficiary will 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 "(I) 
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 perform, the function; (4) the beneliciary 
will act at a senior level within the organizational hierarchy or with respect to the function managed; 
and (5) the beneficiary will exercise discretion over the function's day-to-day operations." Maller of 
G-lnc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
Here, although sales and marketing functions are essential to the organization, the Petitioner has not 
established that the Beneliciary will primarily manage the function, rather than perform non­
qualifying sales and marketing duties. The Beneficiary does not supervise sales and marketing 
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Malter of BLTB-A- Inc. 
"teams" as claimed on appeal. In fact, the Petitioner appears to have difficulty keeping the two 
subordinate positons in the department staffed, as both of the Beneficiary's subordinates left within 
days of filing and the Petitioner indicates that it had to transfer an operations department employee 
to the sales position. As noted the Petitioner indicates that the assistant position performs mainly 
market research duties, which would leave a single sales person responsible for all company sales in 
an office that is primarily a sales ol1ice. The Petitioner's claim that the two staff are sufficient to 
relieve the Beneficiary from performing non-managerial duties associated with sales and marketing 
is not adequately supported by the record, particularly as the Petitioner described the Beneficiary's 
claimed managerial duties in overly broad terms. 
While performing non-qualifying tasks will not automatically disqualify a beneficiary as long as 
those tasks are not the majority of a beneficiary's duties, a petitioner still has the burden of 
establishing that a bene!iciary will "primarily" perform managerial or executive duties. See section 
IOI(a)(44) of the Act. Whether a beneficiary is "function" manager turns in part on whether the 
Petitioner has sustained its burden of proving that their duties are "primarily" managerial. See 
Mal!er olZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). Here, because of the overly 
broad description of the Benc!iciary's duties, the Petitioner did not adequately document what 
proportion of the Beneficiary's duties would be managerial functions and what proportion would be 
non-managerial. Absent a clear and credible breakdown of the time spent by the Beneficiary 
performing specific tasks, we cannot determine what proportion of the duties would be managerial, 
nor whether the Beneficiary is primarily performing the duties of a function manager. IKEA US. Inc. 
v. U.S Dept. of.Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
The Petitioner cites to Maller olZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016), and 
asserts that the Director erred by focusing on the size of the Beneficiary's subordinate staff and the 
small size of the U.S. company 2 As required by section IOI(a)(44)(C) of the Act, if staffing levels 
are used as a factor in determining whether an individual is acting in a managerial or executive 
capacity, USClS must take into account the reasona~le needs of the organization, in light of the 
overall purpose and stage of development of the organization. 
The Petitioner commenced business operations in 2015 and is engaged in the import and sales of 
"llexitank" containers and other plastic materials. The Petitioner indicates that it employs six to 
seven employees, but shows up to II positions on its organizational chart. The Petitioner 
acknowledges a high level of staff turnover in sales and marketing and shows up to five vacancies in 
administrative, operations, and finance roles in its organizational' chart. The Petitioner has not 
indicated who was performing duties related to these unstaffed positions. In fact, at the time of 
tiling, only one of four department manager positions was staffed. Based on the nature of the 
company, the Petitioner has not shown that it requires the Beneficiary to primarily perform the 
higher level marketing and business development functions attributed to him. Rather, it appears that 
2 The Petitioner also refers to non-precedent decisions addressing the same issue. These decisions were not published as a 
precedent and therefore do not bind USCIS officers in future adjudications. See 8 C.F.R. § 103.3(c). Non-precedent 
decisions apply existing law and policy to the specific facts of the individual case, and may be distinguishable based on the 
evidence in the record of proceedings, the issues considered, and applicable law and policy. 
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Matter of BLTB-A- Inc. 
the comp any's two senior staff (including the Benefic iary) would more likely than not be required to 
perform a variety of non-m anagerial duties necessary for the day-t o-day operati ons of the company. 
For the reaso ns discussed , the Petitioner has not established that it would employ the Beneficiary in 
a mana geria l or exec utive position under the extended petition. 
Ill. QUALIFYING RELATIONSHIP 
Although not addressed by the Director, we find that the Petitioner did not submit evidence to 
establi sh that it and the Beneficiary's foreign employer are still qualifying organizatio ns, as required 
by 8 C.F.R. 2 14.2(1)(14)(ii)(A) . The Petitioner stated on the Form 1-129, Petition for a 
Nonimmi gran t Worker, that it is wholly owned by . located 
in China. The Petitioner's 20 15 and 2016 tax returns (IRS Form 1120), indicate at schedu le G that 
the compan y is wholly O\Vned by an individual, 
The record does not contain primary evidence of the ownership of the petitioner or the foreign entity to 
resolve this apparent inconsistency. Therefore , ·although the Petitioner established that the foreign 
entity con tinues to do business, it has not provided sufficient evidence of an ongoing qualifying 
relation ship. 
IV. CONCLUSION 
The appeal will be dismissed because the Petitioner did not establ ish that it will emp loy the 
Beneficiary in a managerial capacity under the extended petition or provided sufficien t evidence of 
its qualifying relationship with the Beneficiary's foreign employer. 
ORDER: The appeal is disrnissed. 
Cite as Matr er of BLTB-A- Inc., ID# 1129254 (AAO Apr. 13, 20 18) 
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