dismissed L-1A Case: Industrial Equipment Wholesale

U.S. Citizenship 
and Immigration 
Services 
In Re: 8228880 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 06, 2020 
The Petitioner seeks to temporarily employ the Beneficiary as general manager of its new office 1 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 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 California Service Center denied the petition, concluding that the record did not 
establish that: (1) the new office would support the Beneficiary in a managerial or executive position 
within one year of the petition's approval; and (2) the Beneficiary was employed abroad in a 
managerial or executive capacity. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
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 his or her services to the same employer 
or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. 
The petitioner must 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 
generally, 8 C.F.R. § 214.2(1)(3)(v). 
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. 
The term "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 term "executive capacity" means an assignment within an organization where an employee 
primarily: directs the management of an organization or a major component or function of it; 
establishes the goals and policies of it, its component, or function; exercises wide latitude in 
discretionary decision-making; and receives only general supervision or direction from its higher-level 
executives, the board of directors, or stockholders. Section 10l(a)(44)(B) of the Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The primary issue to be addressed in this decision is whether the Petitioner established that the new 
office would support a managerial or executive position within one year of approval of the petition. 
With the petition, the Petitioner indicated that the Beneficiary would be employed in an executive 
capacity. On appeal, the Petitioner asserts that the new office would support the Beneficiary in a 
managerial or executive position within one year of the petition's approval, but it did not clarify 
whether the Beneficiary will be primarily engaged in managerial duties under section 101(a)(44)(A) 
of the Act, or primarily executive duties under section 101(a)(44)(B) of the Act.2 We will review both 
below. 
In the case of a new office petition, we review a beneficiary's proposed job duties as well as the 
petitioner's business and hiring plans and evidence that the business will grow sufficiently to support 
a beneficiary in the intended managerial or executive capacity. A petitioner has the burden to establish 
that it would realistically develop to the point where it would require the beneficiary to perform duties 
that are primarily managerial or executive in nature within one year. Accordingly, the totality of the 
evidence must be considered in analyzing whether the proposed managerial or executive position is 
plausible considering a petitioner's anticipated staffing levels and stage of development within a one­
year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
2 The Petitioner's business plan indicates that the Beneficiary will be a "transferee executive," and her proposed duties 
mirror the statute relating to executive duties under section 101 (a)(44)(B) of the Act. However, merely repeating the 
language of the statute or regulations does not satisfy the Petitioner's burden of proof F edin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Aiyr Assocs., Inc. v. Meissner, 1997 WL 188942 
at *5 (S.D.N.Y.). 
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A. Duties 
The Petitioner indicated on the petition that it will operate as an industrial machinery and equipment 
merchant wholesaler. In a business plan submitted with the original petition, the Petitioner indicated 
that it will procure specialized equipment for its parent company or other oil and gas operators in 
Nigeria. The business plan also states that the Petitioner will "secure OEM agreements with US 
equipment manufacturers to distribute them in Nigeria," and that it will engage with "US-based oil 
and gas pipeline companies for the acquisition of expert services." The business plan states that by 
situating its procurement department in the United States, the Petitioner's parent company "will 
achieve process efficiencies, cost savings, and more precise equipment-needs matching." 
The business plan contains a prospective organizational chart depicting the Beneficiary at the top of 
the hierarchy overseeing an executive assistant during its first year of operation. During years two 
through five, it plans to add a procurement officer each year for a total of four procurement officers 
by year five. The business plan also includes a description of the Beneficiary's proposed job duties 
as general manager, including: 
• Directing the management of the organization (35% of time )-has top profit and loss 
responsibility; design organizational structure; assign personnel responsibilities; pursue profit 
and loss targets. 
• Establishing goals and policies of the organization (25% of time )-periodically review and 
reformulate corporate strategy; direct and manage comptroller/treasury function; oversee cash 
management. 
• Exercise of wide latitude in discretionary decision-making ( 40% of time )-serve as primary 
representative in negotiations with government regulators; representing the Petitioner at trade 
conferences and with media channels; formulate and pursue business development 
opportunities and build relationships with target organizations; orient and train employees. 
The Petitioner did not initially indicate that the Beneficiary's duties during its "new office" phase of 
operation would be different from those she would perform during the company's later years of 
operation. In its response to the Director's request for evidence (RFE), the Petitioner submitted an 
amended business plan. The amended plan added a "Start-Up Timetable" detailing monthly activities 
of the Petitioner for the first year of operations. 
In her denial decision, the Director determined that the description of the Beneficiary's duties was 
generalized and did not specifically explain how the Beneficiary will carry out her duties. On appeal, 
the Petitioner asserts that the Beneficiary will initially "plan, organize, direct and control [the 
Petitioner] through an executive assistant until the beneficiary hires procurement officers at the end of 
the one-year initial phase." It states that she has wide latitude in making decisions about the goals and 
management of [the Petitioner] subject only to direction from higher-level executives." It also states 
that the executive assistant "will initially be responsible for procurement until the beneficiary hires 
procurement officers beginning at the end of the first year," and that the Beneficiary cannot be 
considered a first-line supervisor "even if the executive assistant is not a professional" because the 
Beneficiary has authority over the entire enterprise. 
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We agree with the Director that the Petitioner provided a deficient job description that is so general 
that it could describe virtually any executive or management position with any company. Her duty 
description includes very few references to the company's intended business. It provides only vague 
information that focuses on the Beneficiary's discretionary authority, but says little about the actual 
tasks she would perform during the various stages of the company's development and makes no 
distinction between tasks that the Beneficiary would need to perform during the Petitioner's 
rudimentary phase and those she intends to perform once the company is no longer in the "new office" 
stage of development. For instance, the Petitioner vaguely indicated that the Beneficiary would have 
"top profit-and-loss responsibility;" and that she would design the organizational structure of the 
business, assign personnel responsibilities, pursue profit and loss targets, review and reformulate 
corporate strategy, and formulate and pursue business development opportunities. The Petitioner 
provided few specifics related to how the Beneficiary's day-to-day duties fit within the company's 
first-year business plan. Specifics are clearly an important indication of whether a beneficiary's duties 
are primarily executive or managerial in nature. 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). Although it is reasonable to conclude that 
the Beneficiary's duties would change to correspond with the Petitioner's operational development 
and changing needs, the Petitioner did not provide a job description that reflects this likely progression. 
The amended business plan added a "Start-Up Timetable" detailing monthly activities of the Petitioner 
for the first year of operations, including filing this petition, completing the Beneficiary's relocation 
to the United States, shipping business materials from Nigeria, procuring "all fixed assets needed for 
the US office," securing an office lease, hiring an executive assistant, preparing employment 
documents for the Petitioner's employees, collaborating and acquiring with other oil and gas pipeline 
operators and maintenance companies in Nigeria, and recruiting a procurement officer. However, a 
petitioner may not make material changes to a petition that has already been filed in an effort to make an 
apparently deficient petition conform to requirements. See Matter of Izummi, 22 I&N Dec. 169, 175 
(Comm'r 1998). As such, these post-filing additions cannot overcome deficiencies that existed at the 
time of filing. Further, of the 16 detailed start-up activities in the amended plan, only one indicates 
who is responsible for its execution. The other 15 duties do not assign responsibility for their 
implementation. Thus, the amended plan does not sufficiently clarify the Beneficiary's individual 
duties during the first year of operations. 
Further, the Petitioner's assertion on appeal that the executive assistant will initially be responsible for 
procurement until the Beneficiary hires procurement officers is not supported by the job description 
and requirements for the position of executive assistant in the amended business plan. The job 
description for the executive assistant states that the individual will facilitate various business-related 
tasks to support the Beneficiary's activities, including preparing correspondence, answering the phone, 
basic bookkeeping activities, filing, research, maintenance of the Beneficiary's schedule, welcoming 
office visitors, making travel arrangements for the Beneficiary, ordering office supplies, and other 
general administrative support duties. None of the duties include the stated duties of the procurement 
officers, which include negotiating, procuring, and ensuring delivery of materials, supplies, and 
services for clients. Further, the amended business plan states that the job of executive assistant 
requires a high school or college diploma and proven experience as an executive assistant or other 
relevant administrative support experience, while the position of procurement officer requires a 
college/university diploma and at least five years in procurement roles and experience in project 
procurement functions. It is unclear how the executive assistant could perform the duties of a 
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procurement officer during the first year given the differing education and experience requirements. 
Additionally, although the executive assistant will purportedly be performing two jobs during the first 
year, the Petitioner's business plan indicates that the individual will be paid solely as an executive 
assistant and will not be paid for performing the additional duties of procurement officer during the 
first year. Inconsistencies in the record must be resolved with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved 
material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence 
submitted in support of the petition. Id. 
Further, the record contains the Petitioner's Bylaws, which indicate that the "President shall be the 
executive officer of the corporation and shall have the supervision and ... direction of the corporation's 
affairs." The record indicates that the Beneficiary is not the Petitioner's President. Thus, the 
Petitioner's Bylaws conflict with its assertion that the Beneficiary will direct its management, establish 
its goals and policies, and exercise of wide latitude in discretionary decision-making. Id. Further, 
pursuant to the Petitioner's Bylaws, the Treasurer has "custody of all the fonds" of the corporation; 
endorses all checks, notes, and other monetary obligations of the corporation; keeps the books of the 
corporation for "foll and accurate accounts of all monies received and paid by him on account of the 
corporation;" and renders the corporation's cash account statements. The record indicates that the 
Beneficiary is not the Petitioner's Treasurer. Thus, the Petitioner's Bylaws conflict with its assertion 
that the Beneficiary will direct and manage its comptroller/treasury function and oversee its cash 
management. Id. Although the general manager is not listed as an officer of the Petitioner in its 
Bylaws, pursuant to a resolution dated April 16, 2019, the Petitioner agreed to engage a general 
manager who will "manage the setting up and the day-to-day running to the corporation." The 
resolution does not delegate the responsibilities of the President or Treasurer to the general manager, 
and the President and Treasurer are not represented in the Petitioner's organizational chart. These 
inconsistencies preclude a finding that the Beneficiary's duties as general manager will be primarily 
executive or managerial in nature. 
The Petitioner asserts on appeal that the Director failed to acknowledge that the Beneficiary will have 
wide latitude in making decisions about the goals and management of the company. Even if the 
Beneficiary would assume a position as the Petitioner's senior employee, the Petitioner has not 
established that her responsibilities would be "primarily" executive or managerial within one year. 
See Sections 10l(A)(44)(A) and (B) of the Act. Therefore, even though the Beneficiary may run the 
Petitioner's day-to-day operations, a broad overview of her responsibilities, considered in conjunction 
with the conflicting responsibilities of its corporate officers, is insufficient to establish that her actual 
duties during the Petitioner's first year of operation would lead to primarily managerial or executive 
duties within one year of this petition's approval. 
B. Projected Staffing and Business Plan 
As previously noted, the Petitioner did not specify on appeal whether the Beneficiary would serve in 
a managerial or executive capacity. The Petitioner has not submitted sufficient evidence to establish 
that the Beneficiary would act as a personnel manager within the first year. The statutory definition 
of "managerial capacity" allows for both "personnel managers" and "function managers." See section 
10l(a)(44)(A)(i) and (ii) of the Act. The Petitioner does not contend that the Beneficiary would act as 
a function manager within one year; as such, we will only analyze whether she would qualify as a 
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personnel manager. Personnel managers are required to primarily supervise and control the work of 
other supervisory, professional, or managerial employees. While the business plan indicates that she 
will oversee one executive assistant in year one and up to four procurement officers by year five, the 
Petitioner's proposed organizational chart demonstrates that neither the procurement officers nor the 
executive assistant will manage or supervise subordinates. 
On appeal, the Petitioner states that the Beneficiary cannot be considered to be a first-line supervisor 
because she has authority over the entire enterprise. 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) of the Act. However, the Petitioner has not 
demonstrated that the Beneficiary will qualify as a personnel manager based on the supervision of 
professional subordinates within one year. To determine 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. 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 101(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 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 Petitioner has not established that a bachelor's degree is actually necessary to perform the duties 
of its proposed executive assistant and procurement officer positions. As previously discussed, the 
Petitioner asserted that the executive assistant will initially be responsible for procurement until the 
Beneficiary hires procurement officers. However, the amended business plan indicates that the 
position of executive assistant does not require a college degree, while the position of procurement 
officer requires a college/university diploma. It is unclear how the executive assistant can qualify to 
perform the procurement duties with less than a college degree when the procurement officer position 
requires a bachelor's degree. Inconsistencies in the record must be resolved with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. Further, 
the Petitioner does not indicate in detail why a bachelor's degree would be required for the 
procurement officer position. As such, the Petitioner has not demonstrated that it would likely employ 
professionals subordinate to the Beneficiary within the first year of its operations. 
In her denial decision, the Director determined that the structural hierarchy of the new office appears 
to be insufficient to elevate the beneficiary to an executive position. The Petitioner has not shown that 
it will attain the scope of operations needed to support the Beneficiary in an executive role where she 
would reasonably be required to focus on the broad goals and policies of the company within the first 
year of operations. Further, the Director noted that the statutory definition of the term "executive 
capacity" focuses on a person's elevated position and that under the statute, and that a beneficiary 
must have the ability to "direct the management" and "establish the goals and policies" of an 
organization or major component or function thereof Section 101(a)(44)(B) of the Act. To show that 
a beneficiary will "direct the management" of an organization or a major component or function of 
that organization, she stated that a petitioner must demonstrate that the beneficiary primarily focuses 
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on its broad goals and policies, rather than the day-to-day operations of such. As previously noted, 
the Petitioner's Bylaws indicate that its "President shall be the executive officer of the corporation and 
shall have the supervision and ... direction of the corporation's affairs." The Beneficiary is not the 
Petitioner's President and, therefore, the Petitioner has not established that the Beneficiary will direct 
its management and establish its goals and policies of an organization. Instead, as general manager, 
its April 2019 corporate resolution indicates that she will oversee its day-to-day operations. 
Further, changes to the Petitioner's projected financial operations in its business plan limit the 
credibility of those projections. The Petitioner's initial business plan includes a financial projection 
showing expected revenues, costs of services, operating expenses, gross profit, net income, assets, 
liabilities, and cash flow for the first five years of operations. For the first year of operation, it shows 
total revenues of $500,000, including $400,000 in internal procurement fees derived from its parent 
company, and $100,000 in external procurement fees derived from other Nigerian oil and gas 
operators. 3 It also shows costs of services of $175,000, gross profit of $325,000, operating expenses 
of $133,250, and net income before taxes of $182,850. Its pro forma balance sheet shows that it 
expects to have $228,747 in cash in year one. 
In its amended business plan submitted in response to the RFE, although the Petitioner still shows total 
expected revenues of $500,000, it indicates that it expects costs of services of $35,000, gross profit of 
$465,000, operating expenses of $144,538, and net income before taxes of $309,962 for the first year 
of operation. Its revised pro forma balance sheet shows that it expects to have $184,567 in cash in 
year one. All of these figures differ from the figures initially provided with the petition. The Petitioner 
did not explain the factors that accounted for these different projections. As previously noted, a 
petitioner may not make material changes to a petition that has already been filed in an effort to make an 
apparently deficient petition conform to requirements. See Matter of Izummi, 22 I&N Dec. at 175. 
Inconsistencies in the record must be resolved with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. Unresolved material inconsistencies may lead 
us to reevaluate the reliability and sufficiency of other evidence submitted in support of the petition. 
Id. These inconsistencies preclude us from gauging the true income, expenses, assets, and liabilities 
for the first year of operation. They also lead us to question the likelihood that it will progress beyond 
a rudimentary phase of development. 
On appeal, the Petitioner asserts that the Director failed to acknowledge the substantial resources of 
the parent company to support its U.S. subsidiary. However, the Director did address the parent 
company's support in her decision. She stated that the Petitioner did not provide sufficient evidence 
to indicate that the foreign entity's organizational structure will play any part in the new U.S. 
operations. We note that although the Petitioner's business plan indicates that it expects to receive a 
substantial percentage of its revenue from internal procurement fees derived from its parent company, 
as detailed above, the record does not contain credible evidence to support those projected figures. 
The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter 
of Chawathe, 25 I&N Dec. 369,376 (AAO 2010). 
Although the Petitioner has consistently stated that the Beneficiary will occupy the most senior 
position in the new office, it has not submitted a job description or credible evidence sufficient to 
3 The plan states that the Petitioner's primaiy revenue stream will include "20% of the value of procurement transactions." 
7 
demonstrate that she would primarily engage in managerial or executive duties, or that the new office 
would support a managerial or executive position, within one year of the petition's approval. 
Therefore, we will dismiss the appeal. 
III. RESERVED ISSUE 
The Director also concluded that the record did not establish that the Beneficiary was employed abroad 
in a primarily managerial or executive capacity. However, because the issue of whether the new office 
would support a managerial or executive position within one year of approval of the petition is 
dispositive in this case, we need not reach the remaining issue and therefore reserve it. 
ORDER: The appeal is dismissed. 
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