dismissed L-1A Case: International Shipping

U.S. Citizenship 
and Immigration 
Services 
MATTER OF USI-E-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 26, 2018 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an international shipping company, seeks to temporarily employ the Beneficiary as 
general manager of its new office 1 under the L-1 A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 8 U.S.C. 
§ 110l(a)(l5)(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 Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish that the new office would support the Beneficiary in a managerial or executive capacity 
within one year of approval of the petition. 
On appeal, the Petitioner asserts that the Director did not accept, without explanation, its first year 
business plans and the Beneficiary's proposed duties. The Petitioner states that it has submitted 
"overwhelming evidence" that it will hire managers and professionals subordinate to the Beneficiary 
during the first year. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification for 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. Section 101(a)(I5)(L) of the 
Act. The petitioner must also establish that the beneficiary's prior education, training. and 
1 
The tenn ''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(1)( I )(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. 
Matter of USI-E-, Inc. 
employment qualifies him or her to perform the intended services in the United States. 8 C.F.R. 
§ 214.2(1)(3 ). 
If the Form I-129, Petition for a Nonimmigrant Worker, indicates that the beneficiary is coming to 
the United States in L-1 A status to open or to be employed in a new office, 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). 
"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. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director determined that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity within one year. The Petitioner does not claim that the Beneficiary 
will be employed in an executive capacity. Therefore, we restrict our analysis to whether the 
Beneficiary will be employed in a managerial capacity. 
In order to determine whether the Petitioner established that its new office will support a managerial 
position within one year, we will review the Beneficiary's proposed job duties, along with the 
Petitioner's business and hiring plans and evidence that the business will grow sufficiently to support 
the Beneficiary in the intended managerial capacity. The totality of the evidence must be considered 
in analyzing whether the proposed managerial 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). 
A. Duties 
In a support letter, the Petitioner stated that it "will function as an international shipping and courier 
service," and that it would begin operations using a delivery vehicle and warehouse "allowing 
drivers to pick up packages from clients as well as receive drop-off packages from clients at their 
offices." The Petitioner indicated that it would act as a liaison between customers and airfreight 
carriers and offer lower shipping fees than mainstream shipping companies. The Petitioner 
explained that the Beneficiary would be responsible for the "vision and strategy" of the company 
and guide its expansion. 
2 
Matter of U'\1-E-, Inc:. 
The Petitioner provided a duty description for the Beneficiary along with the petition indicating that 
he would devote 20% of his time to supervising employees and department leaders, meeting with 
supervisory subordinates, reviewing and recommending approvals and suggestions for change. 
enforcing company "policies, procedures and productivity standards," and providing "strategic 
advice." The Petitioner indicated that the Beneficiary would spend another 25% of his time on 
coordinating "workflow activities," implementing "short term and long term performance targets and 
strategies for maximizing return on investment," and "providing training and guidance to department 
manager[s]." The Petitioner further explained that the Beneficiary would be responsible 20% of the 
time for monitoring and managing the company's financial performance, including creating and 
managing budgets and assets, and devote another 20% to "monitoring the payroll function,'' 
including reviewing tallied work hours, wage calculations and approving and tracking vacation days 
and time off. Lastly, the Petitioner stated that the Beneficiary would spend 20% of his time making 
"sure that the new U.S. subsidiary remains at the forefront of the industry," applying "the most cost­
effective methods and approaches," negotiating and signing contracts, "supervising material 
undertakings and activities," and assessing "potential risks of the company.'' 
Later, in response to the Director's request for evidence (RFE), the Petitioner submitted a business 
plan which includes another description of the Beneficiary's proposed duties, as follows: 
FUNCTION ALLOCATION OF TIME 
Hire, train, and review key staff members to 15% 
manage shipments and import process 
Enforce company policies and procedures 15% 
Establish sales goals and objectives for the 10% 
Company 
Oversee the financial performance of the 20% 
Company with the Finance Manager 
Create and maintain key relationships with 20% 
clients 
Negotiate contracts with vendors and clients 10% 
Supervise marketing activities 10% 
The Petitioner has submitted vague duty descriptions for the Beneficiary that do not adequately 
convey his actual proposed day-to-day tasks or establish that he would devote his time primarily to 
managerial duties within one year. The Beneficiary's duty description includes several general 
duties that could apply to any manager acting in any business or industry and they do not provide 
insight into the actual nature of his role. The Petitioner has provided few specifics related to how the 
Beneficiary's day-to-day duties fit specifically within the company's first year business plans: for 
instance, what specific actions he will take during the first year to assure that the business develops 
as necessary to support him in a managerial capacity within one year. In fact, the Beneficiary's duty 
description includes few references to the company's projected business. The Petitioner submits few 
examples of what the Beneficiary will review and approve, policies, procedures. or productivity 
standards he will set, strategic advice he will provide, investments he will manage, training he will 
Matter of USI-E-, Inc. 
give, contracts he will negotiate, or "material undertakings" he will supervise. 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), afrd. 905 F.2d 41 (2d. Cir. 
1990). 
In addition, the Petitioner has submitted two conflicting breakdowns of how the Beneficiary would 
spend his time, yet indicates that both descriptions account for 100% of his time. We cannot 
determine which description is likely to represent a more accurate account of his intended 
responsibilities. For instance, in the duty description provided with the petition, the Petitioner 
indicated that the Beneficiary would devote 25% of his time to supervising the company's dit1erent 
departments and coordinating workflow activities, directing short term and long term performance 
targets, and providing training and guidance. However, the duty description provided later in the 
Petitioner's business plan did not indicate that the Beneficiary would spend 25% of his time on any 
given task, and makes no reference to departments, workflows, or performance targets. Further, the 
latter duty description noted that the Beneficiary would spend 15% of his time enforcing "company 
policies and procedures," but this duty was not reflected in the former duty description. Likewise. 
the Petitioner stated in response to the RFE that the Beneficiary would be responsible 20% of the 
time for creating and maintaining key relationships with clients, while the duties submitted with the 
petition do not indicate that he devotes 20% of the time to this task. In sum, the Petitioner provided 
two overly vague duty descriptions that questionably conflict with each and that provide little detail 
as to the Beneficiary's actual day-to-day tasks. The Petitioner must resolve discrepancies in the 
record with independent, objective evidence pointing to where the truth lies. Maller ol Ho, 19 I&N 
Dec. 582, 591-92 (BIA 1988). 
The fact that the Beneficiary manages a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial capacity within the meaning of section 
101(a)(44) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily'' managerial in nature. Section 10l(A)(44)(A) of the Act. Even though the 
Beneficiary would 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 in nature 
within one year. 
B. Business Plan and Projected Staffing 
The new office regulations recognize that a designated manager responsible for setting up operations 
will be engaged in a variety of low-level activities not normally performed by employees at the 
managerial level and that often the full range of managerial responsibility cannot be performed in 
that first year. However, a petitioner's evidence in support of a new office petition should 
demonstrate a realistic expectation that the enterprise is prepared to commence business operations 
and rapidly expand as it moves away from the developmental stage to full operations, where there 
would be an actual need for a manager who will primarily perform qualifying duties. Accordingly, 
the entire record must be considered to determine whether the proposed duties are plausible 
4 
Matter of Wil-E-. Inc. 
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). 
The Petitioner asserted that it would hire an operations manager and a finance manager subordinate 
to the Beneficiary during the first year. Further, a projected organizational chart indicated that the 
Petitioner would also hire a warehouse manager subordinate to the operations manager who would 
supervise a shipping and packing employee and a driver. Therefore. the Petitioner has six projected 
employees, including the Beneficiary, listed on the chart. 
The Petitioner asserts on appeal that the Beneficiary will supervise managerial and professional 
subordinates 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. 
Personnel managers are 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 10l(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(1)(l)(ii)(B)(J). 
The Petitioner has not supported its claim that the Beneficiary will supervise managerial and 
professional employees. The duties provided for the Beneficiary's proposed subordinates are vague 
and also do not convey their day-to-day tasks in the context of the company's first year of 
development. The Petitioner provided a list of non-specific duties for the proposed finance and 
operations managers. First, it broadly states that the finance manager would be tasked with 
providing financial reports and interpreting financial information, advising on investment activities, 
and cost reduction opportunities. Further, it indicated that the operations manager would be tasked 
with improving operational systems, processes, and policies, participating in short and long term 
planning, overseeing all problems concerning logistics systems, and integrating logistics with 
business systems. However, in each case, the Petitioner has provided little detail on the investment 
the finance manager will oversee, or the operational systems, processes, policies, logistics or 
business systems the operations manager will coordinate. The duties provided for these proposed 
managers, much like the Beneficiary's duties, could apply to any such employee in any business. 
In addition, the Petitioner states that the finance manager is the chief executive officer of another 
company, K-I- Inc., with which the Petitioner does business. This assertion leaves significant 
question as to whether the Petitioner will hire this person as its finance manager and whether this 
employee would be a subordinate manager to the Beneficiary as asserted. Again, the Petitioner must 
resolve ambiguities in the record with independent, objective evidence pointing to where the truth 
lies. Ho, 19 I&N Dec. at 582, 591-92. 
Moreover, the Beneficiary's submitted duties do not indicate that he will oversee subordinate 
managers or professionals as necessary to qualify as a personnel manager. For instance. the 
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Matter of USI-E-, Inc. 
Beneficiary's duties in support of the petition indicate that he would be tasked with "monitoring the 
payroll function," including reviewing "tallied work hours, wage calculation and approving and 
tracking vacation days and time off." In short, this evidence suggests that the Beneficiary will be 
acting as first line supervisor and will not delegate personnel management tasks to subordinate 
supervisors. Further, although the Petitioner contends that the subordinate finance and operations 
managers are required to have bachelor's degrees, it does not describe why these are professional 
level positions nor articulate a specific degree requirement for them.2 As such, the Petitioner has not 
credibly established that the Beneficiary would like supervise managers or professionals within the 
first year. 
The Petitioner also has not submitted sufficient detail regarding its business plans, information 
critical to assessing whether it is likely that the business will develop sufficiently during the first 
year. For example, the Petitioner states that it will hire the Beneficiary's managerial subordinates 
shortly after the approval of the petition, and the subordinates of these proposed managers soon 
thereafter. The Petitioner asserts that it will target customers in Florida and take advantage of 
already existing "business relationships and networks," however, it does not identify these likely 
customers or the asserted business relationships and networks it already has in place. 
The Petitioner asserts that the Beneficiary's foreign employer and its owners will invest over 
$120,000 in the new venture, but it does not outline in detail how this investment will be used to 
launch the business nor what specific actions it will take to develop the business during the first year. 
The Petitioner indicates that it will have a payroll of approximately $234,000 per year by the end of 
the first year. However, it provides little detail to substantiate how it will pay these salaries or from 
where it will draw revenue. The Petitioner makes vague references in its business plan to short and 
long term objectives, and marketing strategies, such as the use of print media, "word of mouth,'' 
referral marketing, direct sales calls, email marketing, and the creation of a website, but it submitted 
very few examples of actions it will take with respect to each one of these vague categories to give a 
clear picture of its first year business plans. In addition, it has not identified an employee who will 
perform these mostly non-qualifying operational level tasks. The Petitioner also submits 
documentation indicating that it has already shipped household goods back to China, suggesting that 
it will likely act as a freight forwarding entity for the foreign employer in the United States. Beyond 
providing this service to the foreign employer, the Petitioner has provided few specifics on how it 
will develop as a business in the United States during the first year. 
On appeal, the Petitioner states that we must take into account its reasonable needs. We 
acknowledge that Section I Ol(a)( 44)(C) of the Act requires that US CIS must take into account the 
reasonable needs of the organization in light of the overall purpose and stage of development of the 
2 In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the 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 l 0 I (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." 
Matter of U.S!-E-. Inc. 
organization if staffing levels are used as a factor in detennining whether an individual is acting in a 
managerial capacity. To establish that the reasonable needs of the organization justify a 
beneficiary's job duties, a petitioner must specifically articulate why those needs are reasonable in 
light of its overall purpose and stage of development. The Petitioner has not explained how the 
company will specifically develop during the first year and it has provided insufficient detail 
regarding its first year business plans to show that it would have a reasonable need for the 
Beneficiary to perform primarily managerial duties within one year. 
Likewise, the Petitioner cites to an unpublished decision in which we determined that a beneficiary 
met the requirements of serving in a managerial capacity for L-1 classification even though he was 
the sole employee. The Petitioner has not established that the facts of this petition are analogous to 
those in the unpublished decision. While 8 C.F.R. § 103.3(c) provides that our precedent decisions 
are binding on USCIS, unpublished decisions are not similarly binding. 
The record does not include sufficient probative evidence establishing that the Beneficiary will be 
relieved from performing non-qualifying duties within one year of approval of the petition. The 
Petitioner has not fully developed the record so that we may analyze the viability of its plans to open 
and operate a new office in the United States. 
III. CONCLUSION 
The appeal will be dismissed because the record does not include sufficient evidence to establish that 
the Beneficiary would act in a managerial or executive capacity within a one-year period. 
ORDER: The appeal is dismissed. 
Cite as Matter ofUSI-E-. Inc., ID# 929428 (AAO Jan. 26, 2018)