dismissed L-1A Case: It Consulting

U.S. Citizenship 
and Immigration 
Services 
In Re: 7749565 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 27, 2020 
The Petitioner , a provider of IT consulting services , seeks to temporarily employ the Beneficiary as 
its president under the L-lA nonimmigrant classification for intracompany transferees who are coming 
to be employed in the United States in a managerial or executive capacity. Immigration and 
Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The Director of the California Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that the Beneficiary would be employed in the United States in a managerial or 
executive capacity . The Petitioner subsequently filed a motion to reopen and reconsider , which the 
Director dismissed . That matter is now before us on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we conclude that the Petitioner did not 
overcome the Director's basis for denial. Therefore, we will dismiss the appeal. 
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. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
The primary issue to be addressed in this discussion is whether the Petitioner provided sufficient 
evidence to establish that the Beneficiary's position with the U.S. entity would be in a managerial or 
executive capacity. Although the Petitioner claims that the Beneficiary will be employed in one 
capacity or the other , it does not clearly and consistently state whether the proposed position qualifies 
as employment in a managerial capacity or in an executive capacity . At the time of filing, the 
Petitioner claimed that the Beneficiary will assume an "executive position" where he will focus on 
expanding the business by entering into agreements with "major clients," "completing" the recruitment 
of managers and professionals, and forming an IT department. However, the Petitioner has not 
pursued this claim either on motion or on appeal. Instead, the Petitioner stated on motion that the 
Beneficiary will manage "several essential functions" and later stated on appeal that the Beneficiary 
will manage "an essential function." 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act. The term "function manager" applies generally when a beneficiary does not 
primarily supervise or control the work of a subordinate staff but instead is primarily responsible for 
managing an "essential function" within the organization. See section 10l(a)(44)(A)(ii) of the Act. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of an organization or major component or function thereof Section 10l(a)(44)(B) 
of the Act. To show that a beneficiary will "direct the management" of an organization or a major 
component or function of that organization, a petitioner must show how the organization, major 
component, or function is managed and demonstrate that the beneficiary primarily focuses on its broad 
goals and policies, rather than the day-to-day operations of such. An individual will not be deemed 
an executive under the statute simply because they have an executive title or because they "direct" the 
organization, major component, or function as the owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Id. 
As a threshold matter, we note that a petitioner claiming that a beneficiary will perform as a "hybrid" 
manager/executive will not meet its burden of proof unless it has demonstrated that the beneficiary 
will primarily engage in either managerial or executive capacity duties. See section 10l(a)(44)(A)­
(B) of the Act. While in some instances there may be duties that could qualify as both managerial and 
executive in nature, it is the petitioner's burden to establish that the beneficiary's duties meet each set 
of criteria as put forth in the statutory definition for either managerial or executive capacity. A petition 
may not be approved if the evidence ofrecord does not establish that the beneficiary will be primarily 
employed in either a managerial or executive capacity. 
As stated earlier, the Petitioner has offered competing claims regarding the Beneficiary's proposed 
employment. In a supporting cover letter, the Petitioner stressed the Beneficiary's role in encouraging 
agreements with "major clients" and provided the following job duty breakdown and time allocations: 
• 20% to "lead[ing] the company through two years of business," setting "overall goals and 
guidelines for growth," "lead[ing] the establishment of the company," making decisions on 
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company expansion, and working with "senior management of clients and stakeholders" to 
ensure that the Petitioner attains its growth targets; 
• 20% to "directing and overseeing the coordination of the company's overall financial and 
budgetary activities," "reviewing and analyzing financial data," and retaining services of 
"financial professionals" to oversee budget implementation and planning; 
• 20% to making personnel decisions and determining staff requirements, overseeing human 
resources and "personnel processes," and assigning "daily operations and responsibilities"; 
• 15% to establishing "departmental responsibilities" and coordinating functions among 
departments, directing and implementing policies and objectives, and supervising the 
implementation of marketing plans; 
• 15% to providing reports to the Petitioner's board of directors and shareholders and ensuring 
accuracy of necessary reports; and 
• 10% to analyzing operations and evaluating the company's performance on the basis of reports 
from managers and professionals, and overseeing implementation of the company's business 
plan and plan adjustments. 
After the petition was denied, the Petitioner filed a motion in which it summarized key elements of 
the above job description. Notwithstanding the Petitioner's reiteration of the original claim, it 
introduced a competing claim, first stating that the Beneficiary "will manage several functions" but 
then focused its discussion on a single function, which was identified as "directing and overseeing 
petitioner's [sic] overall financial and budgetary activities, fonding and reporting." The Petitioner 
explained that because it relies primarily on foreign-based subcontractors, "budgeting, financial 
planning and tax compliance becomes an essential function of the business." However, the above job 
duty description does not support the Petitioner's claim that the Beneficiary will primarily manage the 
budgeting, financial planning, and tax compliance function. In fact, the above job description indicates 
that only 20% of the Beneficiary's time would be allocated to activities concerning finances and 
budgets while the remainder of his time would be devoted to other aspects of the business, including 
marketing and growth targets, policy making and implementation, and personnel management, none 
of which indicate that the Beneficiary would primarily manage an essential function. The Petitioner 
has not offered independent, objective evidence to resolve the material inconsistencies among its 
varying claims regarding the classification of the Beneficiary's employment as being in either an 
executive or managerial capacity, nor has the Petitioner provided sufficient evidence establishing the 
nature of the job duties the Beneficiary would perform. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). Furthermore, the Petitioner did not establish that the function the Beneficiary is claimed to be 
managing is essential to the organization. See Matter of G- Inc., Adopted Decision 2017-05 (AAO 
Nov. 8, 2017). 
On appeal, however, the Petitioner repeats its claim that the Beneficiary would manage an essential 
function, asserting that it retained the services of a "leading" financial consulting company to assist in 
the preparation of the Petitioner's tax returns. The Petitioner does not claim, nor has it provided 
evidence to show, that this outside contractor provides other services that support the Beneficiary in 
his claimed management of an essential function. Rather, the Petitioner claims that the "team of 
professionals and managers" in the finance department in the Ukraine help support the Beneficiary's 
essential function. However, the staff descriptions are broad and make no mention of the U.S. entity 
or explain how these positions would work to support that entity. Although two position descriptions 
- those of the accounting lead and one of her two subordinate accountants - indicate that they would 
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perform job duties concerning "newly created entities," it is unclear that the Petitioner is considered 
"newly created" and thus we cannot determine if and how these foreign employees or any of the 
employees in the foreign entity's administration department would support the Petitioner's operation 
or the Beneficiary's position. The Petitioner must support its assertions with relevant, probative, and 
credible evidence. See Matter of Chawathe, 25 I&N Dec. 369,376 (AAO 2010). 
Based on the statutory definitions of managerial and executive capacity, the Petitioner must first show 
that the Beneficiary will perform certain high-level responsibilities. See sections 101(a)(44)(A) and 
(B) of the Act. The Petitioner must also prove that the Beneficiary will be primarily engaged in 
managerial or executive duties, as opposed to ordinary operational activities alongside other 
employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). Further, the Petitioner 
must clearly describe the duties to be performed by the Beneficiary and indicate whether such duties 
are either in an executive or managerial capacity. 
The Petitioner has offered competing claims about the Beneficiary's employment. On the one hand, 
it states that the Beneficiary would assume an "executive position" in which he will "lead the 
company," while on the other hand, it claims that the Beneficiary would manage "essential functions" 
or an essential function that focuses on the company's budgets and finances. Further, despite 
providing a job duty breakdown with time allocations, the Petitioner did not clearly describe the 
Beneficiary's proposed position or convey a meaningful understanding of his actual daily tasks. For 
instance, the Petitioner stated that the Beneficiary would set goals and guidelines for growth and 
identify ways to expand the company, but it provided no specific information describing the goals and 
guidelines he would set or state how the Beneficiary would effectively expand the U.S. client base and 
achieve its sales targets without any U.S.-based personnel to promote and sell its services. The 
Petitioner has not adequately explained how a foreign-based staff would market and sell its services. 
If USCIS finds reason to believe that an assertion stated in the petition is not true, USCIS may reject 
that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § 1154(b); Anetekhai v. INS, 876 F.2d 
1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The Petitioner also stated that the Beneficiary would oversee and coordinate "overall financial and 
budgetary activities" and ensure that investments are maximized and company efficiency is increased. 
However, the Petitioner did not identify any such activities, nor did it identify any of the Petitioner's 
investments or specify the actions the Beneficiary would take to increase efficiency within the scope 
of an operation whose entire work force, with the exception of the Beneficiary and one other employee, 
is based overseas. Further, in considering the claim that the Beneficiary would make personnel 
decisions and oversee human resources, we cannot overlook the fact that the Petitioner has remained 
a two-person staff and employed the Beneficiary for over two years as of the date this petition was 
filed. It is also worthy to note that despite the Beneficiary's 2+ years ofU.S. employment, the petition 
lacks details about the Beneficiary's proposed job duties. Reciting a 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 actual duties themselves will reveal the true 
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nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
aff'd, 905 F.2d41 (2d. Cir. 1990). 
Thus, not only has the Petitioner not consistently stated whether the Beneficiary's job duties should 
be classified as executive or managerial, but it has also provided deficient job descriptions that 
preclude a meaningful understanding or precisely how the Beneficiary would either direct the 
management of the organization and set that organization's policies or how he would manage an 
essential function. 
Furthermore, 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 10l(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 10l(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, these elements alone are insufficient to establish that the Beneficiary's 
actual duties would be primarily managerial or executive in nature. As noted earlier, the Petitioner 
must support its assertions with relevant, probative, and credible evidence. See Chawathe, 25 I&N 
Dec. at 376. The Petitioner's failure to meet fundamental requirements, as described above, impedes 
our ability to assess the Beneficiary's role within the scope of the U.S. organization and precludes a 
meaningful understanding of how the foreign employees and subcontractors, who are claimed to 
comprise the vast majority of the Petitioner's support personnel, would relieve the Beneficiary from 
primarily performing non-qualifying duties. 
Lastly, USCIS has clarified that "an adjudicator's fact-finding authority ... should not be constrained 
by any prior petition approval, but instead should be based on the merits of each case." USCIS Policy 
Memorandum, PM-602-0151, Rescission of Guidance Regarding Deference to Prior Determinations 
of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status (Oct. 23, 
2017), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-10-
23Rescission-of-Deference-PM6020151.pdf The memorandum also emphasized that "the burden of 
proofremains on the petitioner, even where an extension of nonimmigrant status is sought." Id. 
In any event, the deficiencies and ambiguities described above hinder our ability to properly evaluate 
the merits of the Petitioner's claim and thus cannot conclude that the Beneficiary would be employed 
in a managerial or executive capacity. 
ORDER: The appeal is dismissed. 
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