dismissed L-1A Case: Jewelry Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-L-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 16,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a jewelry retailer, seeks to extend the Beneficiary's temporary employment as its 
general manager/shareholder under the L-1 A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(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 to the United States to work 
temporarily in a managerial or executive capacity. 
The Director, Vermont Service Center, denied the petitiOn. The · Director concluded that the 
evidence of record did not establish that the Beneficiary would be employed in a managerial or 
executive capacity under the extended petition. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the evidence of record establishes that the Beneficiary would perform primarily 
managerial duties and manage an essential function of the company. The Petitioner contends that 
the Director placed undue emphasis on the Petitioner's staffing levels and did not consider its 
reasonable needs or the nature of the company. 
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 
capacity, 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, executive, or specialized knowledge 
capacity. !d. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
Matter of F-L-, LLC 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(l)(l)(ii)(G) ofthis section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that the 
alien's prior education, training, and employment qualifies him/her to perform 
the intended services in the United States; however, the work in the United 
States need rtot be the same work which the alien performed abroad. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary will be employed in a managerial or executive capacity under the extended petition. 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. 
A. Law 
Section 10l(a)(44)(A) ofthe Act, 8 U.S.C. § 110l(a)(44)(A), defines the term "managerial capacity" 
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 
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Matter of F-L-, LLC 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. 
Further, "[a] first-line supervisor is not considered to be acting in a managerial capacity merely by 
virtue ofthe supervisor's supervisory duties unless the employees supervised are professional." Jd. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) 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 1 01 (a)( 44 )(C) of the Act. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary will be employed 
in a managerial capacity under the extended petition. 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job duties. See 8 C.P.R. § 214.2(l)(3)(ii). The Petitioner's description 
of the job duties must clearly describe the duties to be performed by the Beneficiary and indicate 
whether such duties are in a managerial or executive capacity. Jd. 
The Petitioner has submitted several different descriptions of the Beneficiary's position as general 
manager. In a letter submitted in support of the petition, the Petitioner asserted that the Beneficiary 
would dedicate 100% of his time to managerial duties, with responsibility for making day-to-day 
business decisions regarding company employees, strategies, and finances. The Petitioner described 
his duties as: 
• Managing the expansion of the jewelry store by networking with local businesses and 
increasing business profits. Manages all business meetings with new advertisement 
consultants. 20% 
• Oversees the sales representatives in the US Entity to ensure that they have the 
knowledge about the jewelry pieces in the business and give customers accurate 
information concerning the jewelry pieces. Directs operational activities of the entire 
company. 20% 
• Develops and implements procedures regarding the security of the company and the 
merchandise in addition to the proper usage and efficient use of the company 
equipment and materials in all areas of the business. 20% 
• Oversees the proper financial and inventory records and successfully monitor the 
jewelry store earnings and projected profits[.] Reviews incoming inventory and 
determines it is quality products. 30% 
• Creates business meetings with top sellers in the U.S. that the Foreign Entity has 
established relationships with. 10% 
The Petitioner also submitted the Beneficiary's resume, in which he describes his duties as follows: 
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Matter of F-L-, LLC 
• Buyer of the jewelry and diamonds sale [sic] in the store 
• Inspect the diamonds that are bought and then forward them to our company in 
Mexico ' 
• Responsible for development and sales growth 
• Training new staff is [sic] hired for the store 
• Check that all the processes of sale and store security are carried out successfully, 
In addition, the Petitioner provided a separate "General Manager" position description which 
included the following additional responsibilities: keeping financial and inventory records and 
monitoring earnings; checking pricing, discounts, promotions or additional services based on 
customer demand; entering into contracts with top sellers in the United States; visiting industry trade 
shows and personally selecting and inspecting jewels purchased; meeting with jewelry designers and 
gem sellers to negotiate new pieces or designer lines; preparing reports for the foreign entity's board 
of directors and authorizing expenditures for store inventory; and setting company financial goals. 
In response. to the Director's requ~st for a more detailed description of the Beneficiary's duties, the 
Petitioner asserted that the Beneficiary manages "essential functions" of the organization and listed 
his duties as: 
• Direct and coordinate financial and annual budget activities to fund operations, 
maximize investments (20%) 
• Analyze operations to evaluate performance of a company or its staff in meeting 
objectives or to determine areas of potential cost reduction, program improvement, or 
policy changes including directing customer relationship (20%) 
• Direct, plan, or implement policies, objectives, or activities of organizational [sic] or 
businesses to ensure continuing operations, to increase sales of the jewelry store and 
[sic] (20%) 
• Negotiate or approve contracts or agreements with suppliers, distributors, and 
customers including international contracts for the purpose of customers in the US 
and abroad (15%) 
• Finalize reports, oversee final reports on expenditures for jewelry store inventory, 
direct meetings with jewelry designers and gem sellers in order to negotiate new 
pieces or new designer lines (20%) 
• Direct human resources activities (5%) 
Finally, on appeal, the Petitioner provides a sample daily schedule of the Beneficiary's activities. 
These duties include: organizing marketing, sales and meeting activities; supervising removal of 
merchandise from security boxes; supervising maintenance; researching new strategies to increase 
sales; organizing marketing; preparing documents for imports and exports and ensuring packages are 
ready to be sent; meeting with the accountant and company president regarding tax issues; drafting a 
letter; supervising the deposit of merchandise in safety boxes at the end of the day; and making sure 
the store is ready for closing. 
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Matter of F-L-, LLC 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that tlie Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
Here, the evidence indicates that the Beneficiary would be responsible for overall management of 
the petitioning company, hiring and firing of non-professional employees, and exercising discretion 
over the day-to-day operations of the Petitioner's jewelry store. However, taken together, the 
Petitioner's varied descriptions of the Beneficiary's position do not establish that his actual day-to­
day duties will be primarily managerial in nature. 
First, we note that the Petitioner has provided two letters with two different lists of duties for the 
Beneficiary, and the Petitioner has claimed that each list represents how the Beneficiary spends 
100% of his time. The purpose of the Director's request for evidence (RFE) was to elicit further 
information that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. § 
103.2(b)(8). The information provided by the Petitioner in its response to the Director's RFE did not 
clarify or provide more specificity to the original duties of the position, but rather replaced the 
original description with new generic duties such as "analyze operates to evaluate performance of a 
company" and "direct, plan or implement policies, objectives or activities of ... businesses." 
Specifics are clearly an important indication of whether a beneficiary's duties involve specialized 
knowledge, 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), aff'd, 905 
F .2d 41 (2d. Cir~ 1990). Further, when responding to a RFE, a Petitioner cannot offer a new position 
to the Beneficiary, or materially change a position's associated job responsibilities. For this reason, 
the focus of our analysis will be on the initial job description. 
The Petitioner's initial letter included a duty description that it claimed accounted for 100% of the 
Beneficiary's time. While the description indicated the Beneficiary's responsibility for directing the 
company's operational activities, developing and implementing security and merchandise handling 
procedures, and monitoring store earnings and profits, it also reflected the Beneficiary's direct 
responsibility for inspecting incoming inventory, involvement in marketing and advertising 
functions through various networking activities, and performance of financial and inventory record­
keeping tasks that are not clearly managerial in nature. Further, the Beneficiary's resume and the 
daily schedule submitted on appeal further reflect his involvement in non-qualifying duties that were 
not included in the Petitioner's letter. . For example, the Beneficiary's resume clarifies that he is 
personally responsible for sourcing and purchasing all jewelry and diamonds sold in the Petitioner's 
store, and inspecting the quality of all purchased items, while the daily schedule indicates that he is 
involved in store opening and closing activities, preparing import and export documentation, and 
overseeing routine store operations such as ensuring that packages are ready for shipment. 
Whether a beneficiary is a managerial or executive employee turns on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial or executive. See sections 
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Matter of F-L-, LLC 
101(a)(44)(A) and (B) of the Act. Here, based on the different job descriptions submitted, the 
Petitioner did not credibly or consistently document what proportion of the Beneficiary's duties 
would be managerial functions and what proportion would be non-manageriaL The evidence of 
record indicates that that the Beneficiary has the appropriate level of authority and performs some 
managerial duties; however he performs a number of non-managerial duties, and as discussed further 
below, the record does not show who would relieve him from performing many of the day-to-day 
operational activities associated with the Petitioner's business. For these reason, we cannot 
determine that the Beneficiary would primarily perform managerial duties. See IKEA US, Inc. v. 
US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Beyond the required description of the job duties, USCIS reviews 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. 
On appeal, the Petitioner states that the Beneficiary is a senior manager responsible for the 
organization as a whole, but more importantly, he is responsible for managing the "essential 
function" of expanding the Petitioner's presence and developing its brand in the United States. 
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. 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 petitioner claims that the beneficiary 
will manage an essential function, a petitioner must provide a clear description of the beneficiary's 
duties that identifies the function with specificity, articulates the essential nature of the function, and 
establishes the proportion of a beneficiary's daily duties attributed to managing the essential 
function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, the petitioner's description of a beneficiary's 
daily duties must demonstrate that the beneficiary will manage the function rather than performs the 
duties related to the function. 
Here, as discussed above, the Petitioner has not clearly articulated the duties the Beneficiary 
performs to manage an essential function, nor has it established that the Beneficiary's actual job 
duties, which include a number of tasks necessary for the day-to-day operation of its store, are 
primarily managerial in nature, much less primarily related to the company's business development 
and expansion function. While performing non-qualifying tasks necessary to produce a product or 
service will not automatically disqualify the Beneficiary as long as those tasks are not the majority of 
the Beneficiary's duties, the Petitioner still has the burden of establishing that the beneficiary will 
"primarily" perform managerial duties. See section 10l(a)(44) of the Act. For these reasons, the 
record does not establish that the Beneficiary would be employed as a function manager. 
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(b)(6)
Matter of F-L-, LLC 
The Petitioner suggests that being "solely responsible for the day-to-day managerial and functional 
decisions at the company" is indicative of a managerial position, and rejects the idea that a "lack of 
personnel" would render the Beneficiary ineligible for classification as an L-1A manager. The 
Petitioner cites to Matter of Z~A -, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 20 16), specifically 
where we found that in order to determine whether a beneficiary's job duties will be primarily 
managerial in nature, an adjudicating officer must consider the totality of the evidence , including the 
nature and scope of the Petitioner's business. In this regard, the Petitioner explains that, as a high­
end jewelry store offering customers a "personalized jewelry experience ," it does not require a large 
number of employees, but rather has fluctuating staffing needs depending on demand. In addition , 
the Petitioner claims that the Beneficiary "supervises and receives support from" individuals who 
work for its Mexican parent company. · 
Turning to the Petitioner's staffing levels, we note that the Petitioner stated on the Form I-129 that it 
had six employees as of February 9, 2016, the date it filed the petition. The initial evidence included 
two organizational charts for the Petitioner. One depicted the Beneficiary supervising three sales 
representatives and the other depicted the Beneficiary 
supervising one sales representative 1 The Petitioner did not provide an explanation for 
these discrepancies in claimed staffing levels , other than noting on appeal that its staffing needs 
fluctuate. 
As evidence of wages paid to employees, the Petitioner has submitted: (1) copies ofiRS Form W-2, 
Wage and Tax Statement, issued to the Beneficiary and five other employees in 2015; (2) a year-end 
payroll summary for 2015; and (3) a payroll summary for the period January 1 to February 26, 2016. 
Upon review, while the evidence shows that the Petitioner employed a total of six employees in 
2015, it did not employ six employees simultaneouslyand it is unclear why the Petitioner statedon 
the Form I-129 that it had six current employees at the time offiling. Further, the Petitioner has not 
submitted any evidence of payments to two of the sales representatives ( 
included on one of its organizational charts. In fact, the payroll records from 2016 confirm that the 
Petitioner employed only the Beneficiary and at the time it filed the petition, and that 
was working, on average, approximately 30 hour per week during the first two months 
of2016.
1 
The Petitioner correctly observes that a company ' s ·size alone, without taking into account the 
reasonable needs of the organization, may not be the determining factor in denying a visa petition for 
classification as an L-lA manager or executive . See section 101(a)(44)(C) of the Act, 8 U.S:C. 
1 In response to the RFE , the Petitioner submitted an updated chart identifYing two sales representatives ~ 
and The Petitioner provided Form 1-9, Employment Eligibility Verification, and an IRS 
Form W-4, Employee's Withholding Allowance Certificate, as evidence that it hired him at the end of February 2016, 
but it did not provide evidence of wages paid to him as of the date of the RFE response on March 14, 2016 . 
Nevertheless, a petitioner must establish eligibility at the time of filing and must continue to be eligible for the benefit 
through adjudication. 8 C.F.R. § 103.2(b)(l). A petition may not be approved at a future date after the Petitioner or 
Beneficiary becomes eligible under a new set of facts . Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm 'r 1971 ). 
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Matter of F-L-, LLC 
§ 1101(a)(44)(C). However, it is appropriate for USCIS to consider the size of the petitioning 
company in conjunction with other relevant factors, such as. the absence of employees who would 
perform the non-managerial or non-executive operations of the company, or a "shell company" that 
does not conduct business in a regular and continuous manner. See, e.g., Family Inc. v. USCJS, 469 
F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size 
of a company may be especially relevant when USCIS notes discrepancies in the record and fails to 
believe that the facts asserted are true. See Systronics, 153 F. Supp. 2d at 15. 
The Petitioner operates a retail jewelry store in Texas, which according to the terms of its shopping 
center lease agreement, is required to be open for business seven days per week for at least 54 hours. 
Although the Petitioner claimed to have six employees at the time of filing, the evidence of record, 
as noted, shows that the company employed only the Beneficiary and one sales representative who 
was working approximately 30 hours per week. The Petitioner emphasizes that there is no minimum 
number of employees required for an L-1 petition, and states that all managers, regardless of the 
number of employees, "may at times perform duties would be consider by USCIS to be '"beneath' a 
manager or executive." 
However, while there is no minimum staffing requirement for an L-1 petition, USCIS reviews each 
petitioner's reasonable needs on a case-by-case basis. Here, the Petitioner has not established how a 
single part-time sales representative would sufficiently relieve the Beneficiary from primarily having 
to perform non-qualifying duties associated with operating a retail business that is open for at least 
54 hours per week. The sales representative would relieve the Beneficiary from performing some 
customer sales duties for more than half of the workweek, but the totality of the record supports a 
finding that the Beneficiary would have to perform all other day-to-day non-managerial duties 
required to operate the store. Moreover the Beneficiary's job descriptions expressly state that he is 
responsible for inventory, marketing, purchasing, inspecting all jewelry and diamonds, and import 
and export documentation, in addition to other administrative and financial matters. In light of these 
duties, and the lack of evidence that the Petitioner had sufficient sales staff to relieve the Beneficiary 
from engaging in direct sales to customers, the evidence of record does not establish that the 
Beneficiary would primarily be employed in a managerial capacity, notwithstanding the authority he 
possesses as general manager. 
We acknowledge the Petitioner'sclaim that the Beneficiary supervises and receives support from its 
parent company's employees, but this claim is not supported by any documentation or detailed 
information identifying the foreign employees, their job titles, or the specific duties they perform the 
U.S. entity. Further, the position descriptions submitted forthe Beneficiary prior to the denial of the 
petition do not refer to his oversight of foreign employees. A petitioner's unsupported statements 
are of very limited weight and normally will be insufficient to carry its burden of proof. See Matter 
of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N 
Dec. 190 (Reg'l Comm'r 1972)); see also Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 
2010). The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter ofChawathe, 25 I&N Dec. at 376. 
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Matter of F-L-, LLC . 
We interpret the statute to prohibit bias against small or medium-size businesses. However, all 
petitioners seeking to classify a beneficiary as an L-1 A manager, regardless of the size of the 
company, must establish that the beneficiary's position consists of "primarily" managerial duties and 
that the petitioner has sufficient personnel to relieve the beneficiary from performing the operational 
and administrative tasks inherent to its specific business. The reasonable needs of the petitioner will 
not supersede the requirement that the beneficiary be "primarily" employed in a managerial or 
executive capacity as required by the statute. See Brazil Quality Stones v. Chertoff, 531 F.3d 1063, 
1 070 n.1 0 (9th Cir. 2008). 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary will be employed in a managerial capacity under the extended petition. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reason. In visa petition 
proceedings, the burden of proving eligibility for the benefit sought remains. with the petitioner. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. · 
ORDER: · The appeal is dismissed. 
Cite as Matter of F-L-, LLC, ID# 39755 (AAO Nov. 16, 2016) 
9