dismissed L-1A Case: Livestock Wholesale

MATTER OF NJL-M- INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 31, 2018 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a wholesaler of livestock (primarily poultry), seeks to temporarily employ the 
Beneficiary as its president under the L-1 A nonimmigrant classification for intracompany transferees. 
Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. § 1101(a)(15)(L). The L-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 Petitioner will employ the Beneficiary in the United States in a 
managerial or executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Beneficiary's past record as president of the foreign parent company establishes his 
leadership role with the company. Most of the arguments on appeal concern the Beneficiary's role 
abroad, although the Director did not base any part of the denial decision on the Beneficiary's 
foreign employment. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-IA 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 10l(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. The 
petitioner must also establish that the beneficiary's prior education, training, and employment 
qualify him or her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
Matter of NJL-M- Inc 
II. DEFINITIONS 
"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 
101(a)(44)(A) of the Act. · 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide 
latitude in discretionary decision-making; and receives only general supervision or direction from 
higher-level executives, the board of directors, or stockholders of the organization. Section 
101(a)(44)(B) of the Act. 
Based on the statutory definitions of managerial and executive 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 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. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity. The Petitioner did not specify whether the position would be 
managerial or executive, although the Director asked the Petitioner to clarify that point. 
A. Staffing 
When examining the managerial or executive capacity of a given beneficiary, we examine 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 Director's decision focused on the company's staffing, and we 
will begin our discussion with that issue. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See sections 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 
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Matter of NJL-M- Inc 
managerial employees. 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) of the Act; 8 C.F.R. 
§ 214.2(l)(l)(ii)(B)(4). If a petitioner claims that a beneficiary directly supervises other employees, 
those subordinate employees must be supervisory, professional, or managerial, and the beneficiary 
must have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. Sections 101(a)(44)(A)(ii)-(iii) of the Act; 8 C.F.R. §§ 214.2(l)(l)(ii)(B)(2)-(3). 
On the petition form, where asked to specify the number of current U.S. employees, the Petitioner 
stated "O." In an accompanying statement, the Petitioner stated that the company had "no employees 
now besides the current shareholders, 1 but it is anticipated that at least 2-3 people will be hired 
immediately after [the Beneficiary's] L-lA visa application is approved and after he arrives and 
positions for his job in the U.S." The Petitioner also discussed positions it hoped to fill "by 2019." 
Although the Petitioner stated that it had no employees at the time of filing the instant petition in 
October 2017, the record shows otherwise. Tax documents in the record show that the Petitioner 
paid three part-time employees in 2017. Two drivers earned $16,000 and $8000, respectively, and a 
salesperson earned $5360. Out of the $29,360 in salaries paid in 2017, the Petitioner paid $18,350 
before October 1st. These documents indicate that the Petitioner had a small staff both before and 
after it filed the instant petition. 
The Petitioner did not claim or demonstrate that the driver or sales positions are managerial, 
supervisory, or professional.2 Therefore, the Petitioner did not establish that it will employ the 
Beneficiary as a personnel manager. 
The Petitioner also has not articulated a specific function that the Beneficiary will manage. The term 
"function manager" applies generally when a beneficiary's managerial capacity derives not from 
supervising or controlling a subordinate staff, but instead from primarily managing an "essential 
function" within the organization. See section 101(a)(44)(A)(ii) of the Act. If a petitioner claims 
that a beneficiary will manage an essential function, it must clearly describe the duties to be 
performed in managing the essential function. In addition, the petitioner must demonstrate that: 
(1) the function is a clearly defined activity; (2) the function is "essential," i.e., core 
to the organization; (3) the beneficiary will primarily manage, as opposed to perform, 
1 The Petitioner's only individual (non-corporate) shareholder is the company's vice president, but there is no evidence 
in the record that this individual is a paid employee. Lists of current and prospective employees do not include the vice 
president. 
2 Professional positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. 
§ 204.5(k)(2) (defining "profession" to mean "any occupation for which a United States baccalaureate degree or its 
foreign equivalent is the minimum requirement for entry into the occupation"). Section l01(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." 
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the function; ( 4) the beneficiary will act at a senior level within the organizational 
hierarchy or with respect to the function managed; and (5) the beneficiary will 
exercise discretion over the function's day-to-day operations. 
Matter ofG- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). In this matter, the Petitioner has 
not described or provided evidence that the Beneficiary manages an essential function. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of management for a beneficiary to direct and a beneficiary must primarily focus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as an 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. 
The Director concluded that, given the company's minimal staffing, the Beneficiary would likely 
have to engage in substantial operational tasks. We agree. The Petitioner, in fact, stated that the 
Beneficiary "has already been doing research on potential customers" and "will spend most of his 
time contacting customers and potential business partners" until the company has hired additional 
subordinate staff. 
On appeal, the Petitioner acknowledges that the company "has been in operation with deficit in the 
first two years, and it has limited customers with no money to hire employees. . . . This also causes 
the problem that our company does not have a strong staff to support the business." The Petitioner 
states that, now that it has received additional capital from its foreign parent company, it "will be 
able to ... hire a stronger subordinate staff ... so that [the Beneficiary] is able to focus on managing 
the company." 
The Petitioner has consistently indicated that the company will, in the future, hire subordinate staff 
which will create an organizational structure that warrants a manager or executive at the top. The 
Petitioner, however, must establish eligibility at the time of filing. See 8 C.F.R. § 103.2(b)(l). The 
Petitioner's future hiring plans do not establish the availability of necessary support personnel as of 
the petition's filing date. 
A new office, which has been doing business in the United States for less than one year, can factor 
planned future growth and development into its petition, such that the company will be able to 
support a managerial or executive position within one year after approval of the petition. See 
8 C.F.R. § 214.2(1)(3)(v)(C). But the Petitioner acknowledged that it is not a new office, and 
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therefore cannot avail itself of the new office provisions. A primarily managerial or executive 
position must exist at the time of filing. The Petitioner has not established that this is the case. 
We note 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 a 
multinational manager or executive. See section 101(a)(44)(C) of the Act. However, it is 
appropriate for us 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. See e.g., Family Inc., 469 F.3d 1313; Systronics Corp. v. INS, 153 F. 
Supp. 2d 7, 15 (D.D.C. 2001). Here, the Petitioner has acknowledged that the Beneficiary's ability 
"to focus on managing the company" is contingent on the future hiring of additional staff. 
Based on the deficiencies discussed above, the Petitioner has not established that the company was 
sufficiently staffed at the time of filing to allow the Beneficiary to be employed in a primarily 
managerial or executive capacity in the United States. 
B. Duties 
A petitioner's description of a beneficiary's 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). 
The Petitioner listed the Beneficiary's proposed duties in the United States: 
1. Expanding current business; making decisions of wide latitude with little or no 
oversight (45% of the time) 
2. Hiring new employees ... (5% of the time) 
3. Developing and implanting [sic] business; in charge of firing employees, if 
employees are found to be incompetent (25% of the time) 
4. Resolving multiple and complex issues raised while doing business in U.S., 
including, but not limited to sales, human resources, legal issues, financial and 
operational decision making (10% of the time); 
5. Examining & checking agreements & listening to reports from employees or 
department managers, analyzing financial papers and allocation funds, planning 
for company's orders (10% of the time) 
In denying the petition, the Director quoted the job description but did not discuss it further, except 
to note that the Petitioner did not specify whether the Beneficiary would serve as a manager or an 
executive. As a result, the appeal does not address the job description. 
The broad generalizations in the above description lack necessary detail. Elements 1 and 4 both deal 
with making decisions, and the Petitioner did not explain how they differ from one another. Element 
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3 combines two very different responsibilities ( developing the business and firing poorly performing 
employees). 
In a separate letter, the Petitioner stated that the Beneficiary "will perform his job position in an 
executive and managerial capacity such as decision making for corporation strategy development 
and public relations." 
In another statement, the Petitioner did not clarify whether the position would be managerial or 
executive, although the Director had asked the Petitioner to do so. The Petitioner stated: 
[The Beneficiary] will help expand the company's business with the joining of the 
new personnel. He will follow up with the existing customers to maintain business 
relationships that ha[ve] already been built up. In addition, he will be in charge of 
[the Petitioner's] marketing and outreach team .... In fact, he has already been doing 
research on potential customers .... 
[The Beneficiary] will also help set up relationships with more farms to ensure that 
the supply meets the demand .... 
. . . At the beginning of [the Beneficiary's] arrival, [the Beneficiary] will spend most 
of his time contacting customers and potential business partners. 
The job descriptions referred to "department managers" and a "marketing and outreach team," but 
the Petitioner had no such employees at the time of filing. At least initially, the Beneficiary himself 
would appear to be primarily involved in marketing and sales activities, which are neither 
managerial nor executive. 
The Petitioner has not established that, at the time of filing, the Beneficiary's position would 
primarily involve managerial or executive tasks. 
IV. CONCLUSION 
The Petitioner did not establish that it will employ the Beneficiary in a managerial or executive 
capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter ofNJL-M-Inc, ID# 1522744 (AAO Oct. 31, 2018) 
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