dismissed L-1A Case: Industrial Lubricants

U.S. Citizenship 
and Immigration 
Services 
In Re: 08231886 
Appeal of California Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: mL Y 6, 2020 
Form I-129, Nonimmigrant Petition for an Intracompany Transferee 
The Petitioner, a manufacturer and distributor of industrial lubricants, seeks to temporarily employ the 
Beneficiary as an executive manager of sales/marketing 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 on the grounds that the Petitioner did 
not establish that the Beneficiary had been employed abroad in a managerial or executive capacity and 
would be employed in a managerial or executive capacity in the United States. 
The matter is now before us on appeal. The Petitioner asserts that the evidence of record establishes 
that the Beneficiary has been employed abroad in a managerial and executive capacity and will be 
employed in the United States in a managerial and executive capacity. 
In visa petition proceedings it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act. 8 U.S.C. § 1361. Upon de nova review, we will dismiss the 
appeal because the Petitioner has not established that the Beneficiary will be employed in the United 
States in a managerial or executive capacity. As this is a fundamental element of eligibility and the 
Petitioner has not satisfied this element, we will reserve the remaining issue relating to the 
Beneficiary's employment abroad . 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA 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 for 
admission into the United States. Section 101(a)(15)(L) of the Act. In addition, the beneficiary must 
seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. The petitioner 
must also establish that the beneficiary's prior education, training, and employment qualify him or her 
to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
As defined in section 10l(a)(44)(A) of the Act, the term "managerial capacity" means an assignment 
within an organization in which the employee primarily -
(i) Manages the organization, or a department, subdivision, function, or component of the 
organization; 
(ii) Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) If another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as promotion 
and leave authorization) or, if no other employee is directly supervised, functions at a 
senior level within the organizational hierarchy or with respect to the function 
managed; and 
(iv) Exercises discretion over the day-to-day operations of the activity or function for which 
the employee has authority. 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. 
As defined in section 10l(a)(44)(B) of the Act, the term "executive capacity" means an assignment 
within an organization in which the employee primarily -
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
Section 101(a)(44)(C) of the Act farther provides that: 
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] shall 
take into account the reasonable needs of the organization, component, or function in 
light of the overall purpose and stage of development of the organization, component, 
or function. An individual shall not be considered to be acting in a managerial or 
executive capacity ( as previously defined) merely on the basis of the number of 
employees that the individual supervises or has supervised or directs or has directed. 
To be eligible for L-lA nonimmigrant visa classification as a manager or an executive, a petitioner 
must show that the beneficiary will perform the high-level responsibilities set forth in the statutory 
definitions at sections 10l(a)(44)(A)(i)-(iv) and 10l(a)(44)(B)(i)-(iv) of the Act, each of which has 
four parts. If the record does not establish that the offered position meets all four elements of the 
pertinent statutory definition, we cannot conclude that it is a qualifying managerial or executive 
position. If a petitioner establishes that the offered position meets all four elements of the applicable 
statutory definition, it must prove that the beneficiary will be primarily engaged in managerial or 
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executive duties, as opposed to ordinary operational act1v1t1es alongside the petitioner's other 
employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining whether 
a beneficiary's duties will be primarily managerial or executive, we consider the petitioner's 
description of the job duties, the company's organizational structure, the duties of the beneficiary's 
subordinate employees, the presence of other employees to relieve the beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding the beneficiary's actual duties and role in the business. 
II. ANALYSIS 
The Petitioner I I is a branch of~---------~based in ~I~------' 
Australia ~ ~- The Beneficiary is described in the petition as the managing director of 
I Is worldwide operations who is being sent to the United States to expand the 
operations ofl I Though founded in 2011 to servel ts U.S. customers, 
I I had only two employees at the time the instant petition was filed in June 2019. 1 Without 
distinguishing whether she would be employed in a managerial or in an executive capacity, the petition 
described the Beneficiary's proposed duties forl las follows: 
• Find administrative and sales staff to work and complete daily tasks of the business. 
• Train new staff on procedures, plans, product knowledge, company structures, 
customer accounts and relations, daily duties. 
• Training distributors and customers on detailed product knowledge and sales 
techniques. 
• Setting up sales and pricing structures for distributors to place the products within its 
correct pricing market. 
• Marketing through direct networking and promoting products at trade shows and 
conferences, in-person distributor contact and customer training and support. 
• On-hand direction for employees and warehouse staff regarding product knowledge 
and company structure. 
• Restructuring of corporate operations for increased efficiency and sales knowledge. 
The petition was accomrnied by a letter from counsel that also listed the Beneficiary's proposed 
duties withl and closely tracked the duties listed in the petition. Like the petition the 
letter did not distinguish whether the Beneficiary would be employed in a managerial or in an 
executive capacity. The letter from counsel stated that the Beneficiary's presence in the United States 
was necessary to execute the following key roles: 
• Finding administrative and sales staff to work and complete daily tasks of the business. 
• Provide specialized training to new staff on our procedures, plans, product knowledge, 
company structures, customer accounts and relations, and daily duties. 
1 The record indicates that! I filed two previous T-129 petitions on behalf of the Beneficiary, in 2012 and 2017. 
The first petition was approved, and the Beneficiary received L-1 A status from October 2012 through September 2015. 
The second petition was denied on March 24, 2017. 
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• Training distributors and customers regarding detailed product knowledge and sales 
techniques. 
• Setting up sales and pricing structures for distributors to place the products within its 
correct pricing market. 
• Setting up new distributors in specified industries to sell the products. They will need 
to have specific knowledge on the products, to help answer technical enquiries for their 
customers. They will also need to have training so they are confident in selling the 
product and be confident and be able to follow up with their customer base. 
• Building business and trade partner relationships through networking. 
• Participation at US-based trade shows - attendance for technical knowledge and 
support. 
In response to the Director's request for evidence (RFE) the Petitioner submitted additional 
documentation which included, in particular, a letter from its COO, I I providing a 
more detailed description of what the Beneficiary will be doing in the United States, as well as current 
and projected organizational charts of the U.S. entity. As described byl I the Beneficiary 
will spend considerable time hiring and training a support staff: attending trade fairs and conferences, 
and marketing the Petitioner's products. 
Based on the evidence submitted by the Petitioner, the Director concluded that the Beneficiary would 
be performing many daily operational tasks of the business, that the current and projected support staff 
would not be substantial enough to relieve the Beneficiary from performing non-qualifying operational 
duties, and that the record did not show that the Beneficiary would be employed in a managerial or 
executive capacity in the United States. 
On appeal the Petitioner submits a brief contending that the Director erred in concluding that the 
Beneficiary will not be employed in a managerial or executive capacity in the United States. The 
Petitioner makes a new assertion on appeal that the Beneficiary will initially be employed as a function 
manager, in charge of hiring and training staff for its U.S. business. The Petitioner quotes a section 
of the previously submitted letter from its COO, .__ _____ ____.which describes this managerial 
function, in pertinent part, as follows: 
Given [the Beneficiary's] extensive knowledge and experience with hiring new 
employees for I I in Australia, [she] will emulate these duties for I I by 
preparing comprehensive and detailed job descriptions, recruiting for these new job 
opportunities, conducting interviews and screening potential candidates for required 
qualifications and experience. She will be in charge of personnel, hiring and firing 2 
and setting up the similar employment structure like it is in Australia. 
[The Petitioner] is in need of [the Beneficiary's] experience and knowledge in 
recruiting the right candidates to fill the following positions: Administration Accounts 
2 The Petitioner points out that this excerpt froml ~ s letter refutes a contrary statement in the Director's decision. 
According to the Director the record indicated that the Beneficiary would not have the authority to hire and fire and take 
other personnel actions in the United States. 
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Officer and Sales Representatives. Part of [ the Beneficiary's] training duties with new 
staff members will include: 
• Company-specific background and historic knowledge ofl landl l[the 
company's line ofprodu~ ts USA business model. 
• Basic understanding of l__J' s unique products and their technical abilities, 
applications/uses of product data information. 
• Reviewing frequently asked questions and standard responses so enqumes can 
easily be answered. 
• Training on sales techniques, customer base and how accounts are set up and 
monitored. 
• Providing education regarding pricing requirements and structuring pricing for 
different types of customers according to their designated tier. 
• In-store merchandising set-ups, incentive based sales programs, processes on 
establishing new and existing accounts. 
• Specific training on how to use the back end of thel I website so stores can be 
regularly updated on our store locator feature. 
In support of its claim that the Beneficiary will be employed as a function manager for hiring and 
training staff forl [ the Petitioner refers to the previously submitted organizational charts 
for the company, the first of which projected a staff of five by the end of 2019 including the Beneficiary 
as "President and Managing Member" (a title which is inconsistent with the job title stated in the 
petition - Executive Manager of Sales/Marketing) and four subordinate employees, including the two 
employees in place at the time the petition was filed .__ ______ __, Chief of Operations, and 
I I part-time Warehouse Storeman) and two new employees to be hired (an administrative 
accounts officer and a sales representative). The second organizational chart projected three additional 
hires in 2020 and 2021 to fill the positions of sales manager, an additional sales representative, and an 
operations and logistics officer, which would raisel Is employee total to eight. The 
Petitioner has submitted a detailed job description for one of the seven expected positions subordinate 
to the Beneficiary - the yet to be hired administrative accounts officer - listing the duties to be 
performed and stating that a high school education and relevant experience were required to qualify 
for the job. For the other six staff positions (two currently in place and four to be hired, as explained 
above) the Petitioner has provided no detailed description of the job duties and no minimum 
qualifications for the jobs. 
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 "(1) 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 
beneficiary 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." 
Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
Even if we accept the Petitioner's claim that hiring and training personnel for the U.S. office is an 
essential function, the Beneficiary does not meet the third requirement set forth in Matter of G-
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because the evidence of record shows that the Beneficiary will not primarily manage the function, as 
opposed to perform the function. The job duties as described in the petition, the letter accompanying 
the petition, and the letters from COO I I in response to the RFE and on appeal clearly 
indicate that the Beneficiary will be personally performing the tasks of hiring and training new 
employees, not managing other employees who perform those tasks. No evidence has been submitted 
that any other employees atl I will relieve the Beneficiary of performing the operational 
tasks of hiring and training new personnel, and none of the job titles of current and future employees 
suggest that this would be the case. Since the Petitioner has not demonstrated that the Beneficiary will 
be eimarily managing, rather than directly performing, the function of hiring and training employees 
for lthe Petitioner has not established that the Beneficiary meets all the requirements of 
a function manager as set forth in Matter of G-. 
Nor has the Petitioner demonstrated that the Beneficiary meets the requirements of managerial 
capacity more generally since the Beneficiary does not meet the entire second element of the statutory 
definition at section 10l(a)(44)(A)(ii) of the Act. Specifically, in addition to not managing an essential 
function as discussed above, the record does not show that the Beneficiary "[ s ]upervises and controls 
the work of other supervisory, professional, or managerial employees." The Beneficiary's job duties, 
as described in the petition and supporting letters, do not indicate that any of her hiring and training 
tasks to be performed for I I involve job positions to be filled with supervisory, professional, 
or managerial employees. Except for the administrative accounts officer (whose job duties and 
qualification requirements clearly indicate that it is not a supervisory, professional, or managerial 
position), no job descriptions and educational requirements have been submitted for any of the current 
and future staff positions at I I With respect to the COO position already filled bye=] 
I I no description of his job duties or evidence of his educational credentials have been 
submitted to indicate that the job is supervisory, professional, or managerial in nature. The 
Beneficiary's job duties, in addition to hiring and training new employees, include other activities such 
as product pricing and marketing, participating in trade shows and conferences, and building business 
relationships. These activities, like the hiring and training tasks, will be conducted largely by the 
Beneficiary, not by other employees under the Beneficiary's management. In sum, nothing in the 
record indicates that any other employees at I I would relieve the Beneficiary from 
performing daily operational tasks of the business. Thus, the Petitioner has not established that the 
Beneficiary will be primarily engaged in managerial duties, as opposed to daily operational activities. 
Family Inc., 469 F .3d at 1316 The Petitioner has not established that the Beneficiary will supervise 
and control the work of other supervisory, professional, or managerial employees atl I as 
required to meet the definitional element of managerial capacity at section 101(a)(44)(A)(ii) of the 
Act. 
The Petitioner asserts on appeal that the Beneficiary will be employed in an executive capacity, as 
defined in section 101(a)(44)(B) of the Act, when her function manager duties are complete and 
I I is folly staffed. The Petitioner states that it intends for the Beneficiary to perform 
executive duties such as "developing company-wide policy, spearheading the rebranding efforts 
company-wide, creating and developing technical compliance documents as required by outside 
agencies, organizations and governmental entities, and serving as the face ofl I as its 
primary executive at trade show, networking and marketing events." In projecting these duties as 
future responsibilities for the Beneficiary, the Petitioner acknowledges that the proposed employment 
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at issue in this petition is not based on a claim that the Beneficiary will be employed immediately in 
an executive capacity. 
The petition may not be approved, however, unless the Petitioner establishes the elements for its 
approval at the time of filing. The petitioner must establish that the position offered to the Beneficiary 
when the petition was filed merits classification as an executive ( or managerial) position. See Matter 
o_f Michelin Tire Corporation, 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). Since the Petitioner does 
not claim that the Beneficiary will be employed in an executive capacity until some uncertain time in 
the future, the Petitioner has not established its eligibility for approval of this petition based on its 
employment of the Beneficiary in an executive capacity. 
III. CONCLUSION 
Based on the foregoing analysis we conclude that the Petitioner has not established that the Beneficiary 
will be employed in a managerial or executive capacity in the United States. The appeal will be 
dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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