dismissed L-1A Case: Lithographic Machine Distribution

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-M-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV.8,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a distributor of lithographic machines and spare parts, seeks to continue the 
Beneficiary's temporary employment as its director of operations under the L-1 A nonimmigrant 
classification for intracompany transferees. 1 See Immigration and Nationality Act (the Act) section 
101(a)(l5)(L), 8 U.S.C. § 110l(a)(15)(L). TheL-IA 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 record did not 
establish, as required, that the Beneficiary would be employed in a managerial capacity under the 
extended petition. 2 
On appeal, the Petitioner asserts that the Beneficiary primarily manages the Petitioner's marketing 
function and contends that, as a function manager, the Beneficiary is not required to supervise 
employees. The Petitioner further argues that its staffing levels are irrelevant in this case and cannot 
be used as a basis for denying L-1 A classification to a function manager. 
Upon de novo review, 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 beneticiary's application for 
admission into the United States. Section 10l(a)(l5)(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. I d. 
1 The Petitioner previously filed a ''new office'' petition on the Beneficiary's behalf which was approved for the period 
March 10, 2015, until March 9. 2017. A "new office" is an organization that has been doing business in the United 
States through a parent. branch, affiliate, or subsidiary 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 one year within the date of approval of the 
petition to support an executive or managerial position. 
2 The Petit·ioner does not claim that it would employ the Beneficiary in an executive capacity. 
Matter of V-M-, Inc. 
A petitioner seeking to extend an L-1 A petition that involved a new office must submit a statement 
of the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
evidence of its financial status; evidence that it has been doing business for the previous year: and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
"Managerial capacity" means as 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 
101(a)(44)(A) ofthe Act. 
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) takes into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. See section 101(a)(44)(C) ofthe Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
In the denial decision, the Director concluded that the Beneficiary's job description 3 was vague and 
was not supported by evidence corroborating the Petitioner's claims that he performs the listed 
duties. The Director also reviewed the Petitioner's staffing levels, and, noting that the Petitioner had 
hired just one employee during its initial year of operations, found that it did not establish that it had 
grown to the point where it could support a managerial position. 
On appeal, the Petitioner cites to several published sources addressing ''functional managers'' and 
claims that it is "obvious" based on the Beneficiary's position description that he is primarily 
managing the Petitioner's marketing function, notwithstanding his ''director of operations'' job title. 
The Petitioner argues that there is no need for him to supervise subordinate staff as a function 
manager and notes that the company's other employee ''can certainly take care of whatever non­
managerial duties [the Petitioner] requires for its operation." Finally, the Petitioner claims that the 
Director did not request corroborating evidence of the Beneficiary's job duties and should not have 
denied the petition on the grounds that it did not provide such evidence. 
3 The job description referenced in the Director's decision is the Petitioner's description of the Beneficiary's duties 
during the company's initial year of operations. As this is a request for an extension of the Beneficiary's stay, the 
Director should have addressed the Petitioner's separate description of the Beneficiary's intended duties under the 
extended petition. As we review the record on a de novo basis, we will address that position description in our 
discussion below. 
2 
Matter of V-M-, Inc. 
When examining the managerial or executive capacity of a given beneficiary, we will look first to 
the petitioner's description of the job duties. 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. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description 
of the job duties, USCIS examines 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. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Duties 
Based on the definitions of managerial capacity, the Petitioner must first 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 the Beneficiary will 
be primarily engaged in managerial 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 at 1533. 
The Petitioner, which sells and distributes lithographic machines and spare parts, seeks to continue 
the Beneficiary's employment as its director of operations. In a supporting letter, the Petitioner 
stated that the Beneficiary will perform the following duties under the extended petition: 
[I]dentify potential new clients for the company's products and services; establish 
new business relationships throughout the U.S.; and negotiate terms of agreements to 
be entered into with new clients and vendors in accordance with the company"s 
business plan. [The Beneficiary] will have full discretion in the development and 
implementation of marketing strategies and policies in order to streamline and 
maximize the company's growth. He will be responsible for distribution channel 
analysis and development; import/export development; and will interview and hire 
new employees as needed to ensure the company is adequately staffed. 
The Petitioner indicated that the Beneficiary had recently hired an employee to perform market 
research, expected to hire an office administration employee '"soon,'' and would hire positions in 
warehouse and logistics and customer service eventually, as the company grows. 
Based on this brief description, it appears that the Beneficiary would perform a mix of managerial 
and non-managerial purchasing, sales, and marketing duties. For example, while the Petitioner 
stated that the Beneficiary is responsible for developing and implementing strategies and policies in 
these areas, he is also responsible for promoting the company to potential new clients and entering 
sales and purchase agreements. Further, based on the Petitioner's statement that it has not yet hired 
warehouse or logistics staff to assist him, it appeared that his duties related to distribution channels 
3 
.
Matter of V-M-, Inc. 
and import/export development would also include non-qualifying duties. The description was 
insufficient to establish that the Beneficiary's role would involve primarily managerial duties. 
In a request for evidence , the Director asked the Petitioner to submit a more detailed statement 
describing the Beneficiary's duties during the previous year and the duties he would perform under 
the extended petition. Although the Petitioner claims that the Director did not request corroborating 
evidence related to the Beneficiary's duties , we note that she advised that the Petitioner "may also 
submit any evidence in support of your statement that you deem appropriate. " The Petitioner 
submitted two separate letters in response- one describing the Beneficiary's duties in the previous 
year, and one describing the duties he would continue to perform under the extended petition. The 
latter description includes the following duties: 
The Beneficiary will dedicate 60% of his time to the following duties: 
Design, formulation and implementation of strategies to reposition the company at the 
commercial level, as a reliable and competitive company with excellent products. 
Conduct market research in order to establishing the key aspects for competing, and 
design strategies for the company to be competitive in the industry and generate an 
increase in sales. 
Will seek to establish relationships with approximately 100 potential customers to 
purchase of a minimum 30 units in graphic arts machinery with a five-time annual 
frequency. was hired . .. to support marketing and sales , which 
will be supported by the company 's advertising strategies. Greater use will be made 
of the warehouse in U.S. for the management of equipment and spare parts which will 
support the business goal and to cover the U.S. market. 
The Petitioner indicated the remaining 40% of the Beneficiary's time will be allocated to: "Analysis 
of the logistics and plant capacity to make an investment which will improve the company's 
shipping capacity." The Petitioner 
noted that, "to fulfill this objective" the Beneficiary would hire a 
person "skilled in logistics management" to carry out the analysis and implement measures to 
improve the purchasing and shipping capacity from the United States to Latin American countries . 
This position description does not add additional clarity to the original job description , nor does it 
establish that the Beneficiary's duties, as of the date of filing, would be primarily managerial in 
nature. As with the earlier position description, the Petitioner indicates that the Beneficiary ' s 
responsibilities will include managerial duties such as formulating strategies, alongside non­
managerial duties , such as conducting market research and direct involvement in promoting and 
selling the company ' s products to customers . While such duties are necessary for the company's 
commercial development in a new market, the Petitioner did not establish how such duties are 
managerial. The Petitioner 's claim that this 60% of the Beneficiary's time would be wholly devoted 
to managing marketing activities is not persuasive. 
4 
Matter of V-M-, Inc. 
Similarly, even though the Beneficiary has authority to make decisions regarding the company's 
logistics and distribution operations, the Petitioner has not shown that his actual duties in this area, 
requiring 40% of his time, were primarily managerial at the end of the Petitioner's initial year of 
operations. The Petitioner indicated that this portion of the Beneficiary's time would be allocated to 
hiring and overseeing a logistics manager in the future, but did not describe the Beneficiary's actual 
duties at the time of filing as they relate to the company's logistics and distribution function. The 
Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 1 03.2(b )(1 ). 
The Petitioner stated that the proposed logistics manager position will be responsible for 
coordinating the supply chain, optimizing transport of goods, and planning the purchasing, 
transportation, warehousing, and distribution activities. The Petitioner has not established who, if 
not the Beneficiary, was performing these duties when it filed the petition in March 2017. 
Even though the Beneficiary holds the senior position within the company, the fact that the 
Beneficiary will manage 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)(A) of the 
Act. By statute, eligibility for this classification requires that the duties of a position be ''primarily'' 
managerial in nature. Section 101 (A)( 44 )(A) of the Act. 
B. Staffing 
The Petitioner stated on the Form 1-129, Petition for a Nonimmigrant Worker, that it had two 
employees when the petition was filed. Those employees include the Beneficiary and one other 
employee hired to "perform market research." 
The Petitioner later stated that the Beneficiary's subordinate, whose job title was never provided, 
performs the following duties: prepares sales plans and budgets: establishes goals and objectives in 
the short and long-term; calculates demand and forecasts sales; and designs, formulates and 
implements repositioning strategies. The Petitioner does not indicate that this employee actually 
assists the Beneficiary with day-to-day market research and sales activities and instead suggests that 
her role mainly involves developing forecasts, strategies and goals, duties which overlap with the 
Beneficiary's own claimed management-level sales duties. This job description tends to further 
support a finding that the Beneficiary himself would be marketing and selling the Petitioner's 
products to customers. 
Further, as noted, the Petitioner indicates that it intends to hire additional staff to perform 
administrative, warehouse, customer service, and logistics duties in the future, but it has not 
indicated who currently performs these operational functions for the company. The Petitioner's 
claim on appeal that the Beneficiary's sole subordinate ''can certainly take care of whatever non­
managerial duties" the company may require is not persuasive. since this subordinate's job 
description did not include the administrative, warehouse, customer service, or logistics activities of 
the company. 
5 
Matter of V-M-, Inc. 
On appeal, the Petitioner objects to the Director's discussion of its statling levels and asserts that the 
Beneficiary "obviously" acts as a function manager. The Petitioner contends that the Beneficiary 
primarily manages the essential marketing function, and states that the Director overlooked the 
nature of his function manager role because his job title is ''Director of Operations .. , While we agree 
that any analysis of a beneficiary's position should be based on his or her actual duties and not on 
the job title, the record here does not establish that the Beneficiary is primarily managing the 
Petitioner's marketing function. 
The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an ·'essential function" 
within the organization. See section 101(a)(44)(A)(ii) ofthe Act. The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that a beneficiary will manage an essential 
function, a petitioner must clearly describe the duties to be performed in managing the essential 
function, or more specifically, identify the function with specificity, articulate the essential nature of 
the function, and establish 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, a petitioner's description of a 
beneficiary's daily duties must demonstrate that the beneficiary will manage the function rather than 
perform duties related to the function. See Matter £?f'Z-A-. Inc., Adopted Decision 2016-02 (AAO 
Apr. 14, 2016). 
Although the Petitioner refers to various published definitions of ·'functional manager,'' we are 
bound to apply the definition of"managerial capacity" found at section 101(a)(44)(A) of the Act and 
the criteria noted above when evaluating whether a given beneficiary is employed in a qualifying 
capacity for the purposes of this visa classification. 
The Petitioner indicates that the Beneficiary will allocate 60% of his time to managing the marketing 
function under the extended petition; however, as discussed, his actual duties as described in the 
record would include non-managerial sales and marketing tasks, such as performing market research 
and entering sales agreements. In addition, the Beneficiary would be required to be significantly 
involved in most operational areas of the company given the company's structure at the time the 
petition was filed. While performing non-qualifying tasks necessary to produce a product or service 
will not automatically disqualify a beneficiary as long as those tasks are not the majority of a 
beneficiary's duties, a petitioner still has the burden of establishing that a beneficiary will 
"primarily" perform managerial or executive duties. See section IOI(a)(44) of the Act. Whether a 
beneficiary is function manager turns in part on whether the Petitioner has sustained its burden of 
proving that their duties are "primarily" managerial. See Z-A-, Adopted Decision 2016-02 (AAO 
Apr. 14, 2016). 
In addition, the Petitioner emphasizes that we should not consider staffing levels when evaluating 
whether a given employee is a function manager. While we do not require evidence that the 
Beneficiary directly supervises subordinates, we must evaluate whether someone other than the 
Beneficiary is available to perform the non-qualifying duties associated with the function he is 
claimed to manage as well as whether the Petitioner has staff to perform the other operational 
activities inherent to its business. 
Matter of V-M-, Inc. 
Here, the Beneficiary is responsible not only for marketing but for the organization as a whole. The 
Petitioner has not established that the one-person support staff in place at the time of filing was 
sufficient to relieve the Beneficiary from significant involvement in the day-to-day operations of the 
company. We must take into account the reasonable needs of the organization and a company's size 
alone may not be the only factor in denying an L-1 A classification petition. See section 
101 (a)( 44 )(C) of the Act. However, it is appropriate for US CIS 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. Family Inc. v. 
USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS. 153 F. Supp. 2d 7, 15 (D.D.C. 
2001). 
The Petitioner does not claim that the Beneficiary's sole subordinate actually performs the 
company's day-to-day sales and marketing duties or any other operational tasks. As noted, the 
Petitioner states that it expects to hire a logistics manager, an office administrator, and warehouse 
and customer service staff in the future, but has not stated who, if not the Beneficiary, was 
performing these activities when the petition was filed. 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. 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. 
III. CONCLUSION 
The appeal must be dismissed as the Petitioner did not establish that it will employ the Beneficiary 
in a managerial capacity under the extended petition. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fV-M-, Inc., ID# 791280 (AAO Nov. 8, 2017)