dismissed L-1A Case: International Freight Forwarding

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 0-G- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY25,2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an international freight forwarding company, seeks to temporarily employ the 
Beneficiary as general manager of its new office under the L-IA nonimmigrant classitication for 
intracompany transferees. See Immigration and Nationality Act (the Act) section I 0 I (a)(I5)(L), 
8 U.S.C. § IIOI(a)(l5)(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 Stales to 
work temporarily in a managerial or executive capacity. 
The Director of the Vermont Service Center denied the petition, concluding that the record did not 
establish, as required, that: (I) the Petitioner had secured adequate physical premises for the new 
office; and (2) the Beneficiary has been employed abroad in a managerial or executive capacity. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred by states 
that it met its burden of proof by establishing the Benellciary's authority over the foreign onice 
where she works, and that the Petitioner's lease is consistent with common business anangements. 
The Petitioner also submits background information about organizational design, photocopied from a 
textbook. Because the Petitioner does not mention this material in the appellate brief, its relevance 
to the appeal is unclear. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classitication, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding the Beneticiary's application for 
admission into the United States. 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 afllliate 
thereof in a managerial, executive, or specialized knowledge capacity. Section I 0 I (a)( 15)(L) of the 
Act. 
The term "new oftice" 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). If the Form 1-129, Petition for a Nonimmigrant 
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Matter of 0 -G- LLC 
Worker, indicates that the Beneficia ry is comin g to the United State s in L-1 A status to open or to be 
employed in a new office, the Petitioner must subm it ev idence to demonstrate that the new office 
will be able to support a manageria l or execu tive position within one year. This evidence includes 
infom1ation regarding the new office's physical premises, the propo sed nature and sco pe of the 
entity, its o rganiza tional structure, its financial goals, and the size of the U.S. investment. See 
generally, 8 C.F.R. § 214.2 (1)(3)(v). 
Tl. PHYSICAL PREMISES 
If the petiti on is for a new office , the Petitioner must establish that it has secure suffic ient physical 
premises to house the new office. 8 C.F.R. § 2 14.2(1)(3)(v)(A). 
The Director found that the Petitioner's "leas e agreeme nt does not appear to be valid because the 
lessor and lessee provided the same address." The lease agreemen t does place both entit ies at the 
same street address, but only the Petitioner's address ends with ' The ' 
designation shows, on its face , that the Petitioner has rented a subdivi sion of the lessor ' s space, 
rather than the same space from which the lesso r itself operat es. The Petitioner , on appea l, states 
that the space is large r than 
the lessor requi res for its own busines s, and the Petitioner has leased the 
surplus area. The Petitioner had previously submitt ed a letter from the lessor, indicating that the 
Petitioner occupies 14,400 square fee t of a 40,000 square foot space. The Petitioner also sub mitted 
copies of processed rent checks and photographs of the space, and the Directo r cited no derogatory 
evidence or informa tion that wou ld discre dit those materials. 
The Petitioner has suffic iently demon strated that it leases part of a warehouse from a company that 
continues to occupy the rest of the warehouse. Because the Director identified no other bas is for 
objecting to the lease, we withdraw this ground for denial. 
llJ. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Pet itioner did not establish that the Beneficiary has been employed 
abroad in a managerial or executive capac ity. On appea l, the Petiti oner states that it has met its 
burden of proof, and that the Beneficiary is the on ly managerial authority at the foreign office where 
she now works. We find that the Petitioner has not met its burden of proof in establishing that the 
Beneficiary's posit ion abroad was managerial or execut ive in nature. 
The statute defi nes the term "mana gerial capacity"' as "an assig nment within an orga nization 111 
which the emp loyee primaril y": 
(i) manages the organizat ion, or a department , subdivi sion, functio n, or component 
of the organizati on; 
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Malter ofO-G- LLC 
(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. 
Section 101(a)(44)(A) of the Act. Further, "a tirst-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." !d. 
The statute defines the tem1 "executive capacity" as "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 10l(a)(44)(B) of the Act. If staffing levels are used as a factor in determining whether an 
individual is acting in a managerial or executive capacity, we must take into account the reasonable 
needs of the organization, in light of the overall purpose and stage of development of the 
organization. See section IOI(a)(44)(C) of the Act. 
A. Foreign Employment in a Managerial or Executive Capacity 
I. Duties 
The fact that the Beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of section IOI(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 
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Mauer of 0-G- LLC 
I Ol(A)(44)(A) and (B) of the Act. While the Beneficiary may exerc ise discretion over the 
Petitioner 's day-to-da y operation s and posses s the requisite level of authority with respect to 
discre tionary decisio n-makin g, the position description s alone are insufficie nt to establish that her 
actual dutie s would be primar ily managerial or exec utive in nature. 
The Petition er stated that its parent company operates in four cities in Mexico; the Beneficiary is the 
operations manager of the office. The Petition er provided the following job 
description for the Beneficiar y's position abroad: 
Monitoring Customs Clearance in coordinate personnel to revise and 
schedule the clearance of rnerc handi se. Supervise and check offic ial document s to be 
presented to Mexican Custo ms Authoriti es for validation and clearance. Dealing 
directly with custom ers to track their shipments, request quotes from suppli ers of 
national and internati onal transport , visits to coordin ation 
with the acco unting department for closing expense s account s and send to customers , 
study billing and collection reports to have a view of the progre ss of the office, staff 
supervis ion. 
The Beneficiary's resume listed the following tasks (note: errors in the original text have not been 
corrected): 
• Supervise custom s clearance shipments at the 
• Coordi nate the revision of all merchandise that arrive to our warehouse in 
TX. and work with all the document ation for its import to Mexico. 
• Study the report s of billing a nd collectio n to have a clear vision of the progress 
and of our office. 
• Opened the company's office in TX and Tamps. 
• Since September 2009 up to this date our fixed assets have increased 95%. 
• Coordinating staff for review and programmin g of the customs office. 
• Review of documentation required for customs presentation. 
• Gloss the pediment s of each import. 
• Have direct communication with cus tomers to request and provide information of 
shipments. 
• Verify compliance \Vith non- tariff restrictions . 
• Elabora
tion of reports and inventories, generating graph s and statistics according 
to the needs of eac h importer. 
• IMMEX man ageme nt program. 
• Contac transportation lines to list national and international freight costs. 
• Close expe nse accounts. 
• Bank reconciliation. 
• Continuous visits to exist ing customers and prospects. 
• Iinterna l audits. 
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Maller of 0-G- LLC 
• Invenstigacion in different government agencies for special import formalities 
goods. 
• Personnel Hiring. 
Later) the Petitioner listed the following elements of the Beneficiary 's "Management Experie nce": 
Supervised customs clearance shipments at the 
Coordina te the revision of all merchandise arriving at 
proper documentati on of imports from Mexico. 
Review reports and billing in order to maxi mize profits 
TX and verification of 
Overviewed the opening of both locatio ns at border of Mexico and Texas. 
Increased fixed assets by 95% within 6 years 
Successful coordination of staff review and programming of customers office 
Maintain office in compliance with all regulatory laws regarding all transactions and 
services being provided 
Review of reports and supervi sion of adequate department s directly responsible for 
accounti ng purposes 
Denying the petition, the Director acknow ledged the Beneficiar y' s supervisory authority over 
subordinat es, but found that the Beneficiary directly performed operat ional tasks relating to 
providing services. 
On appea l, the Petitioner maintains that the Beneficiary "manages all fiscal operations for this 
office, " "has full authority to hire and fire employees," and "pe rforms all executive duties for the 
office." The Petitioner acknow ledges that the Beneficiary provides "incidental 
suppoti to her employees" but maintains that this work is minimal and does not diminish her role as 
general manager. 
The Beneficiary's job descripti on includ es managerial tasks but also non-managerial ones (such as 
visiting prospective clients , conducting audits, and handling customer inquirie s). The Petitioner has 
not stated how much time the Beneficiary devoted to each of these duties , and therefore the 
Petitioner did not show that the Beneficiary primarily served in a mana gerial capacity . 
Also , the Petitioner has listed a numb er of broad respo nsibilities without details as to what the 
Beneficiary did to meet those responsibilities. The Petitioner stated , for example, that the 
Beneficiary supervised customs clearance shipm ents, coordinated staff, ensured comp liance with 
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Matter of 0-G- LLC 
· regulations, and increased assets; but the Petitioner did not identify the tasks the Beneficiary 
performed to achieve those goals. Other 
tasks are unexplained. The meaning of the phrase "gloss 
the pediments of each import" is not evident from the record. (A pediment is an architectural 
feature.) Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature, otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N. Y. 1989), 
qff'd , 905 F.2d 41 (2d. Cir. 1 990). The actual duties themselves reveal the true nature of the 
employment. !d. at II 08. 
Furthermore, as we will discuss below, the oHice docs not appear to have sufficient 
staffto relieve the Beneficiary from performing substantial operational and administrative tasks. 
2. Staffing 
Beyond the required description of the job duties, we review the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including 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. 
The foreign entity's organizational chart showed this structure for the office: 
Manager [the Beneficiary] 
Account Executive 
I 
Operations Supervisor 
I 
Clearing Customs Merchandise Reviewer 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See sections 1 01 (a)( 44 )(A)(i) and (ii) of the Act. The Petitioner did not 
specify whether the Beneficiary served (and will serve) as a personnel manager or a function 
manager (or an executive). Personnel managers are required to primarily supervise and control the 
work of other supervisory, professional, or managerial employees. 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 
l 01 (a)( 44 )(A) of the Act; 8 C.F.R. § 214.2(1)( 1 )(ii)(B)( 4). If a petitioner claims that a beneficiary 
directly supervises other employees, those subordinate employees must be supervisory, professional, 
or managerial, and the beneficiary must have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. Sections 10l(a)(44)(A)(ii)-(iii) of the 
Act; 8 C.F.R. §§ 214.2(l)(l)(ii)(B)(2)-(3). 
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Matter of 0-G- LLC 
To determine whether the BeneJ:iciary manages professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. C.f 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a 
United States baccala,ureate degree or its foreign equivalent is the minimum requirement for entry 
into the occupation"). Section 101 (a)(32) of the Act states that "[t]hc 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." 
The Petitioner did not submit job descriptions for the four subordinate employees in 
Therefore, the record does not show that any of the Beneficiary's subordinates abroad were 
professionals or managers. The operations supervisor and account executive each have one 
subordinate, according to the organizational chart, but without position descriptions, the Petitioner 
has not shown the extent of their supervisory duties. The Beneficiary's authority over supervisors is 
consistent with a managerial capacity, but is not, by itself, sufficient evidence of that capacity. 
The Petitioner has not established, in the alternative, that the Beneficiary was employed primarily as 
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 101(a)(44)(A)(ii) ofthe Act. The term 
"essential function" is not defined by statute or regulation. If a petitioner claims that a beneficiary 
managed an essential function, a petitioner must clearly describe the duties performed in managing 
the essential function, i.e., identify the function with specificity, articulate the essential nature of the 
function, and establish the proportion of a beneficiary's daily duties dedicated to managing the 
essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, a petitioner's description of a 
beneficiary's daily duties must demonstrate that the beneficiary managed the function rather than 
perfom1ed the duties related to the function. 
As discussed above, the Beneficiary's own job description docs not provide enough information to 
pennit the conclusion that she managed an essential function at the office. According 
to the organizational chart, the company's headquarters employs a head administrator , administrative 
assistant, and individuals in charge of treasury, billing, collections, and general accounting, but the 
chart showed no on-site staff at the office to perform local , low-level administrative 
functions. 
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 101(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 a beneficiary 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 "direct" the enterprise as the sole managerial employee at a given location. The 
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Matler of 0 -G- LLC 
beneficiary must also exerci se "wide latitude in discretionary deci sion making" and rece ive only 
"ge neral supervision or direction from higher l eve l executiv es, the board of direc tors, or 
stockh olders of the orga nization." Jd. 
At times, the Petitioner has used the word "exec utive·' in relation to the Beneficiar y's dut ies, but the 
Petitioner has not put forward a detailed or coher ent claim as to how the Beneficiary 's authority over 
one of the Petitioner's local oftices amounts to an exec utive capacit y, excep t for the basic assertion 
that the Ben eficiary reports directly to the highe st leve ls of the company' s leadership . The Petitioner 
has not shown that the office is a maj or component of the petitioning organ izat ion, or 
that the Beneficiary establ ishes the goals and policies of the organi zation or a component or function 
thereat ; exerc ises wide latitude in discretionar y decision making; or receives only general 
super vision from higher level s of the orga nization. 
Based on the deticiencies discussed above, the Petitioner has not estab lished that the Benefic iary 
was employed in a manageri al or execu tive capacity abroad. 
B. U.S. Emp loyme nt in a Manage rial or Executi ve Capacity 
In additi on to the grounds of ineligibility enumerat ed in the Dire ctor 's decision, we find that the 
Petitioner has not established that it would employ the Benefi ciary in a managerial or execu tive 
capac ity in the United State s wit hin one year of the approva l of the petition . T he Petitioner 
addresses this issue on appeal , stating that the Beneficiary has aut hority over the new U.S . office and 
that denial of the petition wou ld leave the new office without m anageme nt. We disagree, for the 
reaso ns detailed below. 
When a new business is establi shed and commen ces operation s, the regulations recognize that a 
designated manager or executive respons ible for setting up operation s will be engaged in a variety of 
act ivitie s not normally performed by emplo yees at the exec utive or managerial level and that ofte n 
the full range of mana gerial respons ibilit y cannot be perform ed. ln order to qualif y for L-1 
nonimmi grant classification during the first yea r of operations , the reg ulations require a petitioner to 
disclo se the proposed natur e of the business and the s ize of the U.S. investment , and establish that 
the prop ose d enterprise will support an executive or m anagerial position within one year of the 
approval of the petition . See 8 C.F .R. § 214.2(1)(3 )(v)(C). Thi s evidence should demonstrate a 
realistic expectation that the enterprise will succeed and rapidly expand as it moves away from the 
developm ental stage to full operations, where there would be an act ual need for a manager or 
executi ve who will primaril y perform qualif ying duti es. 
1. Duties 
Initially , the Petitione r stated: 
The Gene ral Man ager is respo nsible for the ove rall manage ment of the business 
operat ions for the compan y. 
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Maller ofO-G- LLC 
Has full authority to negotiate contracts of obligation, purchases of property and 
equipment, leases and any other business necessity. 
Is responsible for the cpmpany to meet all obligations of compliance with rules, 
regulations and rules of procedure with the Mexican and United States Customs and 
immigration and tax codes for compliance. 
Will [meet] directly with accountants and legal service providers to insure that the 
company is complying with all requirements for operation in Federal, State and local 
Issues. 
Will have full authority to hire and fire and promote employees. 
Will answer directly to the President and Members of LLC & Mexican parent 
company 
The Petitioner subsequently submitted a ''Breakdown of weekly time management": 
Operations and Work Force Management (20 hours) 
1.) Review policies and procedures on all areas of the company, identify areas of 
improvement and recommend necessary actions 
2.) Review and revise internal controls to promote the proper functionality of the 
company 
3.) Revise profits and ledger report to create strategic plans and detect areas of 
improvement 
4.) Establish individual and team goals 
5.) Organize and head daily meetings to evaluate employees, and diminish 
deficiencies 
6.) Direct management of all accounts 
7.) Hiring and firing based on performance and business needs 
8.) Supervise and maintain a safe work environment at every location 
Identifying Improvement Areas (10 hours) 
1.) Analyze and evaluate current operations and procedures 
2.) Analyze monthly statements, profits and loss statements and projections 
3.) Study and Control operating costs to identify target areas and develop a cost 
reduction plan 
4.) Increase profit margin by reducing costs and expenses 
5.) Enforce and ensure all trainings and compliance is completed timely 
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Matter of 0 -G- LLC 
Administration Management (lO hours) 
1.) Supervise director of operations, and reviewing weekl y reports 
2.) Authorize tran sactions on business accounts , and ensuring its purpose 
3.) Ensuring the correct allocation of expenses in order to avoid accounting i ssues 
Several of the identified area s overlap partially or entirely. For example, several different elements 
of the above list deal with analyzing finances to increase profits. The Petitioner did not explain how 
"reducin g costs" differs from "develop[ing] a cost reduction plan. " The organization of the list 
appears to be arbitrary , with one sect ion titled "Identifying Improvement Areas ," \Vhile several 
elements outside of that section deal with identifying "areas of impro vement." 
As with the list of duties abroad , the above list concentrates more on general goals than on the 
specific tasks that the Benefici ary would perform to achieve those goa ls. Also, the description 
indicates that the Beneficiary would "[s]upervise [the] director of operations," but the petitioning 
U.S. entit y's organizational char1 does not show a director of operation s. 
For these reason s, the Petitioner has not shown that the Benefici ary's intended U.S. duties are, or; 
will be, prim arily managerial or executive. 
2. Staffing 
The Petitioner has identified three planned full-time positions (40 hours per week) , subordinat e to 
the Benefi ciary , at the location: 
• A warehouse mana ger, " [r]esponsible for shipping and recetvmg [and] data entry of 
products," checking for discrepancies in shipments, and "[u]sing forklifts." The position 
require s 
a high school education and two years' experien ce. 
• A forklift operator , who would report to the warehouse manager , and whose duties would 
primarily involve "loadin g, unloadin g and transpm1ing heavy goods and material s." The 
position requires a high school education and two years' experience. 
• A traffic supervisor , respon sible for "[i]n voice entry and traffic consolidation ," "shipping 
documentation," and "[c]onsulting clients. " The Petitioner stated that the position requires 
five years of experience and a bachelor's degree. 
The Petiti one r stated that it would pay the forklift operator and warehous e manager $ 1200 per 
month. Given the 40-hour work week , that rate of pay is below minimum wage as of the filing date. 
The traffic supervisor's wage is somew hat higher, but the Petitioner did not provide eno ugh 
information about the position to estab lish that the claimed requirem ent of a bachelor 's degree is 
realistic. 
Despite the wordin g of the respective job titles, the warehouse manager has operational and 
administrative dutie s that call into question the extent of his c laimed supervisory or managerial 
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Maller of 0-G- LLC 
responsibilities, and the traffic supervisor has no subordinates and therefore no supervisory function. 
The Beneficiary's authority over these three fi·ont-line employees does not make her a personnel 
manager. 
As with the foreign position, the Petitioner has not specifically claimed that it would employ the 
Beneficiary as a function manager, or identified an essential function which the Beneficiary would 
oversee. The Director noted that the Beneficiary's authority was and will be over a specific local 
office rather than an identified function of the company. 
On appeal, the Petitioner states "if you were to remove the beneficiary from the organizational staff 
of the new office you would be left with five workers with no management authority." The 
Petitioner identified only three subordinates, not five. More impo1iantly, the assertion that the 
company will have "no management authority" in the Beneficiary's absence is not evidence that the 
Benef]ciary's position would be primarily managerial. The Petitioner has not shown that the three 
identif1ed subordinates would perform enough of the office's administrative and operational tasks to 
allow the Beneficiary to devote most of her time to qualifying managerial activities. Also, the 
Petitioner has not shown that the new office will have an organizational hierarchy, with subordinate 
layers of management, that would justify an executive position there. 
The Petitioner has not demonstrated that it seeks to employ the Benef1ciary in a managerial or 
executive capacity in its new office in the United States, or that the new off1ce would support a 
managerial or executive position within a year of approval of the petition. 
IV. CONCLUSION 
The Petitioner did not establish that the Benetlciary's past employment abroad, or intended future 
employment in the United States, qualif1es as either managerial or executive. 
ORDER: The appeal is dismissed. 
Cite as Maller ofO-G- LLC, ID# 324275 (AAO May 25. 20I 7) 
II