dismissed L-1A Case: Import/Export

U.S. Citizenship 
and Immigration 
Services 
In Re: 18967213 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 29, 2021 
The Petitioner, an import/export business, seeks to temporarily employ the Beneficiary as the corporate 
president of its new office' in the United States under the L-lA nonimmigrant classification for 
intracompany transferees. Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C . 
§ 1101(a)(15)(L). 
The Director of the Texas Service Center denied the petition concluding the record did not establish 
that the Beneficiary had one continuous year of qualifying employment abroad during the three years 
preceding the filing of the petition and did not establish that the Beneficiary's employment abroad was 
in a managerial or executive capacity. 
On appeal, the Petitioner asserts the Director's decision is incorrect and does not comport with the law 
and facts of the petition . In these proceedings, it is the Petitioner's burden to establish eligibility for 
the requested benefit by a preponderance of the evidence. 2 
Upon de nova review, we will dismiss the appeal. 3 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 8 C.F.R. § 214.2(1)(3)(v)(B). In addition, the beneficiary must seek 
to enter the United States temporarily to continue rendering their services to the same employer or a 
subsidiary or affiliate thereof in a managerial or executive capacity . Id. 
1 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(l)(l)(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. 
2 See section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010) . 
3 See Matter of Christo 's Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015) . 
The petitioner must also submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and scope 
of the entity, its organizational structure, its financial goals, and the size of the U.S. investment. See 
generalZv, 8 C.F.R. § 214.2(1)(3)(v). 
II. CONTINUOUS EMPLOYMENT ABROAD 
On the Form I-129, Petition for a Nonimmigrant Worker, the Petitioner identified the foreign employer 
as I I al I company. The Petitioner stated that the Beneficiary has been 
employed with thel !company since its inception in September 2012. In a letter in support 
of the petition, the foreign entity indicated the Beneficiary was the founding officer of the foreign 
entity, was elected president and continues to be president, and is the sole shareholder in the company. 4 
The record does not include the Beneficiary's passport and U.S. Citizenship and Immigration Services' 
records show that the Beneficiary was in the United States from March 4, 2018 to August 19, 2018 
and again from February 21, 2019 to August 20, 2019. Thus, during part of the 2018 and 2019 years, 
the Beneficiary does not appear to have been working for the foreign entity inl l 5 The 
record does not include probative evidence of the Beneficiary's full-time continuous employment for 
one year during the period July 1, 2016 to July 1, 2019, the three years preceding the filing of this 
petition on July 1, 2019. The Petitioner does not offer probative evidence or argument corroborating 
the Beneficiary's employment for thel I entity on appeal. Without additional evidence 
demonstrating the Beneficiary's actual employment during the pertinent period, the record 1s 
insufficient to establish this essential requirement for eligibility for this nonimmigrant visa. 
III. EXECUTIVE/MANAGERIAL CAP A CITY WITH THE FOREIGN EMPLOYER 
The Petitioner also has not established that the Beneficiary was employed abroad in a managerial or 
executive capacity. As a preliminary matter, the Petitioner does not clearly articulate whether the 
Beneficiary has been or is employed in a managerial or executive capacity abroad. 6 The Petitioner 
does not clarify whether the Beneficiary will be primarily engaged in managerial duties under section 
10l(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of the Act. The 
4 The foreign entity also noted that the Beneficiary is a paiiial shareholder in a Pakistani company. The foreign entity does 
not discuss whether the Beneficiary is actively involved in work for the Pakistani company and if so when the work 
occurred or whether his role is more limited. Accordingly, it is not possible to ascertain the impact, if any, of the 
Beneficiary's involvement with the Pakistani company. The lack of information in the record regarding the Beneficiary's 
past employment for this separate entity, or others, precludes a conclusion that the Beneficiary worked full time for the 
I I foreign entity during the three years preceding the filing of the petition. 
5 The regulation at 8 CFR 214.2(1)(1 )(ii)(A) defines an intracompany transferee, in part, as one "who, within three years 
preceding the time of his or her application for admission into the United States, has been employed abroad continuously 
for one year by a [qualifying entity], and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof .... " The regulation fmther states 
"[p ]eriods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate. or subsidiary 
thereof and brief trips to the United States for business or pleasure shall not be interruptive of the one year of continuous 
employment abroad but such periods shall not be counted toward fulfillment of that requirement." Id. 
6 The Petitioner does not claim and the record does not show that the Beneficiary was employed in a specialized knowledge 
capacity. 
2 
Petitioner must clearly describe the duties to be performed by the Beneficiary and indicate whether 
such duties are either in an executive or managerial capacity. The Petitioner must demonstrate that 
the Beneficiary's responsibilities meet the requirements of one or the other 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 
10l(a)(44)(A) of the Act. 
The statute defines "executive capacity" as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function of 
the organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 101(a)(44)(B) of the Act. 
A. Duties 
To be eligible for L-lA nonimmigrant visa classification as a manager or executive, the Petitioner 
must show that the Beneficiary will perform the high-level responsibilities set forth in the statutory 
definition at section 101(a)(44)(A)(i)-(iv) or 10l(a)(44)(B)(i)-(iv) of the Act. If the record does not 
establish that the offered position meets all four of these elements for one or the other of these sections, 
we cannot conclude that the foreign position is a qualifying managerial or executive position. 
In a support letter, the foreign employer indicated it was established in September 2012 and that it 
employed several people in the office. The foreign entity noted the Beneficiary is responsible for final 
approval on all major contracts for price and terms, that he directs the work of the staff, sets policy, 
hires, fires, and promotes staff: approves budgets and expanding market presence, as well as negotiates 
terms with carriers. In response to the Director's request for evidence (RFE) on this issue, the 
Petitioner submitted financial reports and statements signed by the Beneficiary in his capacity as 
director. The record also included the Beneficiary's verification of three employees for the foreign 
entity. Other than the Beneficiary's signature, the record does not include evidence of the 
Beneficiary's tasks in creating these documents, if any. 
On appeal, the Petitioner submits a statement from the foreign entity's auditor who states that the 
Beneficiary is the director and chief executive officer of the foreign entity and has been since 
September 2012 and that he continues in that position. The auditor also indicates that the Beneficiary 
is responsible for: hiring, firing, and promoting staff or approving those actions; giving final approval 
on all major contracts; arranging or approving any corporate borrowing; setting corporate policies on 
hiring, firing, extension of credit to clients; giving final approval in the extension or change in product 
lines; and, giving final approval on plans for international expansion of the company's operations. 
3 
The auditor notes that even though the Beneficiary "is outside the country at the present time [October 
28, 2020], he continues to perform these executive duties." 
The descriptions of the Beneficiary's duties abroad are generic and could apply to any manager or 
executive acting in any business or industry. They provide little insight into the actual nature of the 
Beneficiary's role abroad. Reciting the Beneficiary's vague job responsibilities or broadly-cast 
business objectives is not sufficient; the regulations require a detailed description of the Beneficiary's 
daily job duties. The Petitioner has not provided the detail or explanation of the Beneficiary's 
activities in the course of their daily routine. The actual duties themselves will 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). 
The Petitioner did not provide examples of the Beneficiary's work, did not identify contracts 
negotiated, did not submit evidence of corporate policies created, and did not include evidence of 
particular product lines. The record reveals little about the foreign entity's trading business and the 
Beneficiary's role in directing the management of the organization or managing the organization. 
Likewise, the Petitioner did not adequately detail or document financial resources discussed, plans 
created, or marketing expansion designed. The Petitioner also did not articulate or provide supporting 
documentation to substantiate the Beneficiary's management and oversight of subordinates. Lastly, 
the Petitioner did not detail or corroborate the major business partners and clients the Beneficiary 
maintained relationships with, expense proposals or funding requests approved or denied, or final 
hiring or personnel dismissal issues decided. The lack of detail and documentation related to the 
Beneficiary's asserted foreign capacity is noteworthy given that the Petitioner asserts the Beneficiary 
had been in this role since September 2012. The record does not include supporting documentation to 
demonstrate the Beneficiary's performance of qualifying duties abroad. 
The descriptions of the Beneficiary's claimed duties are not substantive and do not include the 
percentage of time allocated to specific tasks or categories of tasks. We are unable to determine 
whether the majority of the Beneficiary's duties are non-qualifying administrative or operational 
duties or whether the duties constitute primarily managerial or executive duties. That is, the 
descriptions of the Beneficiary's job duties for the foreign entity do not establish what proportion of 
the duties is managerial or executive in nature, and what proportion is non-managerial and 
non-executive. See Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
The fact that the Beneficiary will manage or direct a business, which has not been established in this 
record, does not necessarily establish eligibility for classification as an intracompany transferee in a 
managerial or executive capacity within the meaning of section 10l(a)(44) of the Act. By statute, 
eligibility for this classification requires that the duties of a position be "primarily" executive or 
managerial in nature. Sections 10l(A)(44)(A) and (B) of the Act. While the Beneficiary may exercise 
discretion over the Petitioner's day-to-day operations and possess the requisite level of authority with 
respect to discretionary decision-making, the position descriptions alone are insufficient to establish 
that his actual duties would be primarily managerial or executive in nature. 
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B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, the reasonable needs of the organization are taken into account in light of the 
overall purpose and stage of development of the organization. See section 101 (a)( 44 )( C) of the Act. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within 
a complex organizational hierarchy, including major components or functions of the organization, and 
that person's authority to direct the organization. Section 10l(a)(44)(B) of the Act. Under the statute, 
a beneficiary must have the ability to "direct the management" and "establish the goals and policies" 
of that organization. Inherent to the definition, the organization must have a subordinate level of 
managerial employees for a beneficiary to direct and they must primarily focus on the broad goals and 
policies of the organization rather than the day-to-day operations of the enterprise. An individual will 
not be deemed an executive under the statute simply because they have an executive title or because 
they "direct" the enterprise as the owner or sole managerial employee. A beneficiary must also 
exercise "wide latitude in discretionary decision making" and receive only "general supervision or 
direction from higher level executives, the board of directors, or stockholders of the organization." Id. 
Similarly, a personnel manager 7 is 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). 
The record here does not include an organizational chart showing the employees at the foreign entity. 
In addition, the references to the foreign employees in the record is inconsistent. Initially, for example, 
the foreign entity noted it employed a financial officer who is responsible for banking operations, 
reviewing, and recommending credit for customers, preparing financial documents to send goods 
internationally, and who directs the preparation of invoices, bills of lading, as well as coordinating the 
creation of a budget with the Beneficiary. In response to the Director's RFE, although the Beneficiary 
verifies the employment of a part-time clerk, a sales representative, and a stockkeeper, an individual 
performing the duties described for the financial officer is not included as one of the foreign entity's 
employees. Similarly, the foreign entity initially stated it employed a shipping director who directed 
suppliers including cargo firms and freight carriers, two quality control inspectors, and sales 
representatives in some countries. Other than verifying the employment of a sales representative, the 
record does not include verification letters of any of the employees initially mentioned. 
Moreover, the record does not include sufficiently detailed duty descriptions for any of the foreign 
entity's claimed employees such that we may review and analyze their duties. The record does not 
7 The Petitioner does not claim and the record does not include evidence to suggest that the Beneficiary's foreign position 
is 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 primarily responsible for managing an "essential function" within the 
organization. See section 10l(a)(44)(A)(ii) of the Act. Here, the Petitioner does not articulate a specific function that the 
Beneficiary managed for the foreign entity. 
5 
substantiate that any subordinate employees at the foreign entity provide supervisory, managerial, or 
professional tasks rather than primarily performing the necessary operational and administrative tasks 
of the organization. Accordingly, it is not possible to conclude that the Beneficiary would "direct the 
management" of the organization or would primarily supervise and control the work of other 
supervisory, professional, or managerial employees. The record is deficient in establishing the roles 
and claimed responsibilities of the foreign entity's employees. 
Further, even if the Petitioner establishes that the offered position meets all elements set forth in one 
of the statutory definitions, 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). An 
employee who primarily performs the tasks necessary to produce a product or to provide services is 
not considered to be "primarily" employed in a managerial or executive capacity. Matter of Church 
Scientology Int 'l, 19 I&N Dec. 593, 604 (Comm'r 1988). Without consistent and probative evidence 
substantiating its employees and their duties and roles within the foreign entity's operations, the 
Petitioner has not established that it employs subordinate staff sufficient to relieve the Beneficiary 
from performing non-qualifying duties. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary has been or is 
employed abroad in a managerial or executive capacity. 
IV. CONCLUSION 
The appeal must be dismissed because the Petitioner has not established that: 1) the Beneficiary had 
one continuous year of full-time qualifying employment abroad during the three years preceding the 
filing of this petition, and 2) that the Beneficiary's employment abroad is in a managerial or executive 
capacity. As these issues are dispositive in this case, we need not reach other issues in this matter 
including whether the Petitioner has established a qualifying relationship with the Beneficiary's 
foreign employer and whether the Beneficiary would be employed in a managerial or executive 
capacity in the United States within one year. Accordingly, those issues are reserved. 
ORDER: The appeal is dismissed. 
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