dismissed L-1A Case: International Trade

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-M-C-, LTD. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 15,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an international trading business, seeks to extend the Beneficiary's temporary 
employment as its president and chief executive officer under the L-1 A nonimmigrant classification 
for intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 
8 U.S.C. § 1101(a)(15)(L). The L-1A classification allows a corporation or other legal entity 
(including its affiliate or subsidiary) to transfer a qualifying foreign employee t6 the United States to 
work temporarily in a managerial or executive capacity. 
The Director of the Vermont Service Center denied the new office extension petition, concluding 
that the record did not establish, as required, that the Beneficiary will be employed in the United 
States in a managerial capacity. 
On appeal, the Petitioner submits additional evidence and asserts that the Director's determination is 
arbitrary, capricious, and "devoid of any reasonable analysis of the evidence submitted." The 
Petitioner contends that the totality of the evidence overwhelmingly favors approval. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
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capacity, for one continuous year within three years preceding the Beneficiary'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 affiliate 
thereof in a managerial, executive, or specialized knowledge capacity. Section 10l(a)(15)(L) of the 
Act. 
An L-1 A nonimmigrant visa petition that involved the opening of a new office may be extended by 
filing a new Form I-129, Petition for a Nonimmigrant Worker, accompanied by a statement of the 
duties performed by the beneficiary for the previous year and the duties the beneficiary will perform 
under the extended petition, and the staffing of the new operation, including the number of 
Matter of E-M-C-, Ltd. 
employees and types of positions held accompanied by evidence of wages paid to employees. 
8 C.F.R. § 214.2(1)(14)(ii)(C) and (D). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Petitioner asserts that the Beneficiary's "job duties have been exclusively managerial," that he 
"holds the highest position in the management structure of the company," and that "he will not be 
involved in non-managerial job duties in daily operations." 1 
The term "managerial capacity" is defined as "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. 
Section 101(a)(44)(A) ofthe Act. Further, "[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." !d. 
A. Duties 
When examining the managerial capacity of the Beneficiary, we will look first to the Petitioner's 
description of the job duties. The description of the job duties must clearly describe the duties 
performed by the Beneficiary and indicate whether such duties are in a managerial or executive 
capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Based on the definitions of managerial capacity, the 
Petitioner must first show that the Beneficiary performs certain high-level responsibilities. 
Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, 
1 As the Petitioner does not claim that the Beneficiary will be employed in an executive capacity, we limit our analysis to 
whether the Beneficiary will be employed in a managerial capacity. 
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Matter of E-M-C-, Ltd. 
the Petitioner must prove that the Beneficiary primarily engaged in managerial duties, as opposed to 
ordinary operational activities alongside other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petitioner initially submitted a brief description of the Beneficiary's proposed job duties and did 
not provide an allocation of the time the Beneficiary would spend on the duties described. In 
response to the Director's request for evidence (RFE), the Petitioner provided a description of duties 
and the approximate amount of time the Beneficiary would spend on those duties during a 40-hour 
week. The Petitioner stated that the Beneficiary's responsibilities would include (paraphrased and 
bullet points added for clarity): 
• Overseeing and supervising the company's overall business operations, plans, 
organizing and directing the overall operations of the company in order to obtain 
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optimum efficiency and maximize profits; developing and formulating policies 
and strategies for short-term and long-term development of the corporate 
organizational and business activities (3-5 hours); 
• Developing and implementing plans and operations, directing and overseeing the 
operations of the business activities and provisions of products/services of the 
company, reviewing and analyzing information and reports about marketing 
conditions and trends, overseeing the company's business development programs, 
making critical policy decisions in marketing and distribution (5-7 hours); 
• Maintaining and solidifying the management, and possible acquisitions, hiring, 
promoting, terminating, and reviewing the performance of key corporate 
personnel (3-5 hours); 
• Supervising the vice president/business manager in managing operations of 
sourcing, marketing products, securing supplies and overseeing products/services' 
quality for marketing/sales, and logistics management, directing the vice 
president/business manager in managing the marketing efforts of the 
products/services of the company to improve overall efficiency, particularly in 
transnational operations, establishing and expanding products network in the 
United States and in China to achieve operational efficiency (12-15 hours); 
• Reviewing the activity reports and financial statements submitted to him by the 
vice president/business manager to determine progress and status in attaining 
objectives and revising objectives and planning in accordance with current 
conditions and directing the purchase, sale and shipping matters through the vice 
president who oversees the subordinates carrying out those functions (5-7 hours); 
• Making all major financial, legal decisions regarding the company's business 
operations, directing and coordinating formulation of financial programs to 
provide funding for new operations to maximize returns on investment and to 
increase productivity; analyzing and developing budgeting plans and requests to 
identify issues and allocating operating budget; and handling legal and financial 
matters concerning the outside professionals including lawyers, accountants in 
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Matter of E-M-C-, Ltd. 
connection with negotiating agreements, performance review of these 
professionals/contractors (3-5 hours); 
• Exercising discretionary decision-making authority in his power to approve, 
negotiate and conclude major contracts, business deals and business operations 
(2-3 hours); and 
• Promoting the organization in trade associations, preparing and sub~itting the 
operation reports to the parent company in making policy decisions in connection 
therewith and resolving any business problems that the new company may 
encounter (2-3 hours). 
On appeal, the Petitioner repeats the above description and asserts that the duties described are detailed 
and do not re-state the regulatory definition of managerial capacity. 
We disagree. The description of the Beneficiary's proposed duties lacks detail regarding his specific 
tasks for the Petitioner. The broad responsibilities described could apply to any one of a number of 
businesses. For example, overseeing and supervising overall business operations and plans, 
organizing and directing overall operations to obtain efficiency and maximize profits, and 
developing and formulating policies and strategies to develop the company are generic duties that do 
not describe what the Beneficiary will actually be doing in relation to the Petitioner's international 
trade in materials and minerals. Likewise, developing and implementing plans and operations, 
directing and overseeing operations and provisions of products/services of the company, and 
reviewing and analyzing information and reports about marketing conditions and trends are duties 
that are not specific to the Petitioner. Not only are these duties non-specific to the Petitioner, based 
on this information, it appears the Petitioner may be providing some sort of "services," in addition to 
trading in specific products. The Petitioner provides an all-purpose description that does not convey 
an understanding of the Beneficiary's actual day-to-day duties. The record does not include 
sufficient information regarding the Petitioner's business or the Beneficiary's tasks to establish that 
the Beneficiary will perform duties primarily in a managerial capacity. 
The Petitioner indicates that the Beneficiary will spend a significant portion of his time ( 12 to 15 
hours) supervising and directing the vice president/business manager in "managing operations of 
sourcing, marketing products, securing supplies and overseeing products/services quality for 
marketing/sales, and logistics management, in managing the marketing efforts of the products/services 
of the company to improve overall efficiency, particularly in transnational operations, establishing and 
expanding products network in the United States and in China to achieve operational efficiency." The 
Petitioner does not further detail what the actual tasks involve. Thus, it is not clear what tasks the 
Beneficiary will perform in carrying out these claimed supervisory duties and whether the duties are 
actually supervisory duties as opposed to operational tasks. 
The Beneficiary's duties that involve the review of reports and financial statements, making 
financial and legal decisions, negotiating major contracts and business deals, and promoting the 
organization are not sufficiently detailed to demonstrate that they are managerial duties rather than 
duties that require the Beneficiary's performance of operational, financial, and administrative duties. 
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Matter of E-M-C-, Ltd. 
Other duties, such as hiring, promoting, terminating, and reviewing the performance of key 
corporate personnel are short-term, responsibilities that would not make continued demands on the 
Beneficiary's time. The Petitioner has not provided sufficient detail to establish that these duties 
incorporate the duties of a managerial position as defined in th~ regulation. 
On appeal, the Petitioner emphasizes that the Beneficiary will concentrate on the corporate 
governance, development of overall strategies, financial, legal, and other policy matters and that the 
vice president will relieve him from the management of the day-to-day operations. However, the 
actual tasks involved in corporate governance have not been explained, and the Petitioner does not 
provide evidence of the Beneficiary's development of strategies, or of other financial, legal, and 
policy matters. Reciting the Beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the Beneficiary's daily 
job duties. The Petitioner has not provided sufficient detail or explanation of the Beneficiary's 
activities in the course of his daily routine. The actual duties themselves will reveal the true nature 
ofthe employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 
905 F .2d 41 (2d. Cir. 1990). Overall, the job descriptions do not specifically relate to the 
Petitioner's trading business but are a generic summary of responsibilities that may or may not fall 
within the parameters of a managerial position. 
Moreover, 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 101(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 101(A)(44)(A) and 
(B) of the Act. While the Beneficiary may exercise discretion over the Petitioner's day-to-day 
operations and possess the requisite level of authority with respect to discretionary decision-making, the 
position description alone is insufficient to establish that his actual duties would be primarily 
managerial in nature. The Petitioner has not included the specifics necessary to establish that the 
Beneficiary will perform primarily managerial tasks as defined in the statute. 
B. Staffing 
Beyond the required description of the job duties, U.S. Citizenship and Immigration Services 
(USCIS) reviews the totality of the record when examining the claimed managerial 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 Petitioner stated that it employed five individuals, including the Beneficiary, when the petition 
was filed. The Petitioner's initial organizational chart identified the vice president/business manager 
as reporting directly to the Beneficiary. The organizational chart identified two sales executives and 
one sales and shipping clerk as reporting directly .to the vice president/business manager. The 
organizational chart indicated that the financial officer position was vacant. 
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Matter of E-M-C-, Ltd. 
In response to the Director's RFE, the Petitioner submitted a revised organizational chart which inserted 
the proposed positions of logistics manager and sales manager under the vice president/business 
manager's position and added outside lawyers and accountants as collaborating with the Beneficiary's 
position. However, planned positions are not relevant to the petition under review and the record does 
not include supporting evidence that the Petitioner contracted with lawyers and accountants for services 
related to the organization's business operations. Accordingly, the revised organizational chart does not 
assist in a determination ofthe Beneficiary's role when the petition was filed. 
The Petitioner described the vice president/business manager's pqsition as directing the operations of 
the company in purchase, sales, distributions, and logistics and directing and reviewing market 
research efforts and analysis reports by subordinates, as well as, setting up operating procedures, 
negotiating with outside sales representatives, overseeing negotiations with shipping and customs 
companies, and assigning tasks to subordinate purchase/sales executives and shipping personnel and 
reviewing their performance. The description also noted that the vice president/business manager 
would make financial determinations on prices and inventory, would prepare reports for the 
president, and until a financial officer was hired, would shoulder the financial officer's duties. The 
Petitioner stated the annual salary for this position as $40,000. However, the Petitioner's payroll 
records show that this individual was compensated at a monthly rate of pay of $1,350 which is 
equivalent to $16,200 annual salary. 
The sales/shipping clerk position is described as performing inventory management, collecting and 
verifying sales/purchase orders, preparing delivery schedules, creating bills of lading and certificates 
of origin, handling exchanged or returned products, following up with purchasers or buyers on 
quantity and satisfaction, as well as sharing clerical, secretarial, and administrative duties during the 
initial startup operations. The stated salary for this position is $25,000. The Petitioner's payroll 
records show that this individual was compensated at a monthly rate of pay of $1,350 which is also 
equivalent to an annual salary of$16,200. 
The sales executives duties are described as carrying out the daily sourcing/purchase/sales operations 
of the company, implementing the marketing/sales strategies, negotiating prices with customers, 
visiting customers and suppliers, researching, collecting, and updating latest market conditions, 
handling exchange of merchandise, invoices, and customers' accounts, and ensuring customer 
satisfaction. The Petitioner indicated that the annual salary for one of the sales executives is $30,000 
and the other is $25,000. The Petitioner's payroll records show both sales executives were paid 
$1,500 per month, or an annual salary of$18,000. 
The Petitioner does not explain the inconsistency between the salaries it claims the positions warrant 
and the salaries it actually paid. Additionally, it is unclear why the claimed supervisory position of 
vice president/business manager with the responsibilities the Petitioner asserts he performs would 
receive a salary at the same level as a sales/shipping clerk and less than the two sales executives he 
supervises. The inconsistency between the salaries claimed and the salaries paid and the ambiguity 
resulting from the levels of pay in relation to the positions held raises questions regarding the role 
each individual actually plays in the Petitioner's organization. 
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Matter of E-M-C-, Ltd. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(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 101(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. 8 C.F.R. § 214.2(l)(l)(ii)(B)(3). 
Although the Petitioner's description for the vice president/business manager's position includes 
some supervisory duties over the sales executives and sales/shipping clerk, based on the Petitioner's 
allocation of this position's time spent on supervisory duties, supervision of subordinates is not the 
position's primary task. The responsibilities of this position include a number of tasks including 
market research and analysis and the duties of the financial officer. As the Director noted, and the 
Petitioner acknowledged, some of this position's duties also overlap with the Beneficiary's claimed 
responsibilities. The evidence regarding the vice president/business manager's position does not 
support a conclusion that the position is managerial, supervisory, or professional in nature. 2 The 
descriptions for the positions of sales executives and sales/shipping clerk also do not include 
evidence that the positions are managerial, supervisory, or professional positions. Although the 
Petitioner allocates a significant portion of the Beneficiary's time to supervising or directing the vice 
president/business manager, the record does not include consistent evidence of the nature of this 
position or other probative evidence of an organizational structure sufficient to elevate the 
Beneficiary to a position higher than a first-line supervisor of non-professional employees. 
The statutory definition of "managerial capacity" also allows for "function managers." See sections 
101(a)(44)(A)(i) and (ii) of the Act. 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) of the Act. The 
term "essential function" is not defined by statute or regulation. If a petitinner claims that a beneficiary 
will manage an essential function, a petitioner must clearly describe the duties to be 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 
2 When evaluating whether a position is a professional position, we evaluate whether the position requires 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." We focus on the level of education required by the position, 
rather than the degree held by the employee. Here, the position descriptions do not indicate that a baccalaureate degree 
is required to perform the duties of the positions. 
Matter of E-M-C-, Ltd. 
beneficiary's daily duties must demonstrate that the beneficiary will manage the function rather than 
perform the duties related to the function. 
The Petitioner does not expressly claim that the Beneficiary will manage an essential function of the 
organization. Rather, the Petitioner asserts that the Beneficiary will "focus on the development of 
company," "oversee the business operations through his subordinate vice president/business 
manager," and act as the Petitioner's "strategist and the top decision maker of the company." 
However, as determined above, the Petitioner's description of the Beneficiary's duties is not 
sufficiently detailed to determine what tasks will actually engage him in the pursuit of developing 
the company or acting as the Petitioner's strategist and top decision maker. Thus, there is also 
insufficient information to identify a function with any specificity or to conch.ide that the Beneficiary 
will primarily manage an essential function. 
On appeal, the Petitioner asserts that the Director did not consider the reasonable needs of its 
organization and its particular stage of development as a new company. The Petitioner notes that it 
plans to hire additional managers and employees in the future. However, the regulations require that 
we examine the Petitioner's organizational structure and staffing levels at the end of its initial year of 
operations. See 8 C.F.R. § 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only 
allows the "new office" operation one year within the date of approval of the petition to support an 
executive or managerial position. There is no provision in US CIS' regulations that allows for an 
extension of this one-year period. If a business does not have the necessary staffing after one year to 
sufficiently relieve the beneficiary from performing operational and administrative tasks, the 
petitioner is ineligible for an extension. 
The record documents that the Petitioner is doing business and achieved substantial gross receipts 
during 2016, but it does not contain sufficient evidence of the Beneficiary's claimed work in a 
managerial capacity for the petitioning entity. The evidence of record does not establish that the 
Beneficiary's work will be primarily managerial or executive in nature. The Petitioner has not 
overcome the Director's determination on this issue. 
III. CONCLUSION 
The appeal will be dismissed because the Petitioner has not est<;tblished that the Beneficiary will be 
employed in a primarily managerial capacity under the extended petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-M-C-, Ltd., ID# 407677 (AAO June 15, 2017) 
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