dismissed L-1A Case: Logistics And Transportation

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-USALLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 20,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a provider of logistics and transportation services, seeks to temporarily employ the 
Beneficiary as its transportation manager 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 
Petitioner did not submit sufficient evidence to establish that it would support the Beneficiary in the 
United States in a managerial or executive capacity within one year of approval of the petition. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director did not properly assess the supporting documents, which the Petitioner 
claims substantiate the claim that the Beneficiary would be employed in a managerial capacity. 
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 A-USA 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) of this 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 not be the same work which the alien performed abroad. 
In addition, the regulation at 8 C.F.R. § 214.2(1)(3)(v) states that if the petition indicates that the 
beneficiary is coming to the United States as a manager or executive to open or to be employed in a 
new office, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial 
capacity and that the proposed employment involved executive or managerial 
authority over the new operation; and 
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(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size ofthe United States investment and the financial ability ofthe 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
(3) The organizational structure of the foreign entity. 
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Matter of A-USA LLC 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that it would 
support the Beneficiary in a managerial or executive capacity within one year of the approval of the 
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. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(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 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. 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. 
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 10l(a)(44)(C) ofthe Act. 
A. Evidence of Record 
The Petitioner filed the Form I-129 on October 9, 2015, stating that the Beneficiary's "substantial 
managerial skill," which he acquired during his employment abroad in the position of "Chief of the 
Technical Department," would allow the U.S. entity to "assume correct positioning within the 
market and proper promotion of [its] services." The Petitioner claimed that it will employ the 
Beneficiary as a transportation manager and have six employees by the end of its first year of 
operation "including two subordinate managers." The Petitioner stated that the Beneficiary would 
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Matter of A-USA LLC 
supervise a chief mechanical engineer, who would oversee mechanical consultants and truck 
dispatchers. The Petitioner provided the following list of the Beneficiary's proposed job duties: 
• Supervise the Chief Mechanical Engineer; 
• Formulate and implement policies and procedures as they relate to the company's 
transportation department and activities; 
• Analyze expenditures and other financial reports to develop plans, policies and 
budgets for [the] transportation department; 
• Enforce compliance of [the] transportation department personnel and determine 
staffing requirements, and interview, hire and train new employees, or oversee 
subordinate managers in the personnel process within the department. 
• Conduct investigations in cooperation with government agencies to determine causes 
of accidents and to improve safety procedures; 
• Oversee,s activities relating to dispatching, routing, and tracking transportation 
vehicles, preparing management recommendations such as increasing fares and 
expanding/changing transportation schedules; 
• Recommend or authorize expenditures for acquisition of new equipment to increase 
efficiency of transportation department; 
• Act as company representative before commissions and regulatory bodies concerned 
with transportation guidelines; 
• .Oversee the chief mechanical engineer in t]le repaiLand maintenance of vehicles, 
equipment and facilities; 
• Negotiate and authorize contracts with equipment and materials suppliers; 
• Represent the company is [sic] union contract negotiations and settlement of 
gnevances. 
The Petitioner provided a number of supporting documents showing the U.S. and foreign entity's 
business activities and a fin<;1ncial study and business plan with growth and business projections as 
well as its marketing and sales strategies for expanding the business within a five-year time frame. 
Specifically, at section 7.3 of the business plan, the Petitioner stated that a "sales force, more than 
any other function, is responsible for profit-generation." At section 8.1 of the business plan, the 
Petitioner included a personnel plan, which indicated that the Petitioner would "begin its operations 
with a staff of six," which would include the head of the organization, an operations manager, a 
transportation manager, an administrative assistant, a truck dispatcher, and a mechanic consultant. 
The Petitioner stated that as it adds trucks to its fleet, it would hire a chief' mechanical engineer, an 
account manager, and a customer service representative. The Petitioner explained that it would 
, retain truck drivers on an independent contractor basis. The Petitioner also provided job descriptions 
for the above named positions, including the following additional job description for the 
Beneficiary's proposed position: 
Direct activities related to dispatching, routing, and tracking long distance heavy load 
trucks. Plan, organize and manage the work of subordinate staff to ensure that the 
work is accomplished in a manner consistent with organizational ~equirements. 
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Matter of A-USA LLC 
Direct investigations to verify and resolve customer or shipper complaints. Serve as 
contact persons for all workers within the department, including contracted drivers. 
Implement schedule and policy changes. Collaborate with other managers and staff 
members in order to formulate and implement policies, procedures, goals, and 
objectives. Monitor operations to ensure that staff members comply with 
administrative policies and procedures, safety rules, union contracts, and government 
regulations. Promote safe work activities by conducting safety audits, attending 
outside safety seminars, and meeting with individual staff members. Monitor 
spending to ensure that expenses are consistent with approved budgets. Direct 
activities of staff performing repairs and maintenance to vehicles. Analyze 
expenditures and other financial information in order to develop plans, policies, and 
budgets for increasing profits and improving services. Negotiate and authorize 
contracts with equipment and materials suppliers, and monitor contract fulfillment. 
Set operations policies and standards, including determination of safety procedures 
for the handling of dangerous goods. Recommend or authorize capital expenditures 
for acquisition of new or used trucks in order to increase efficiency and services of 
[the] operations department. Prepare management recommendations, such as 
proposed fee and tariff increases or schedule changes. 
Lastly, section ~.1.1 of the Petitioner's business plan included a proposed organizational chart, 
showing the company's managing director at the top of the hierarchy, followed by an operations 
manager and a transportation manager as his two direct subordinates. The Beneficiary's position of 
transportation manager is depicted as directly overseeing a chief mechanical engineering, a position 
that is projected to be filled sometime during the second year of operation. The chart shows a truck 
dispatcher and a mechanic consultant, both to be hired during the Petitioner's first operating year, 
and independently contracted truck drivers at the bottom of the chart within the transportation 
department, which the Beneficiary would manage. 
The Director issued a request for evidence (RFE), informing the Petitioner that the record lacked 
sufficient evidence to establish that the Petitioner would have the ability to support the Beneficiary 
in a managerial capacity within one year of the petition's approval. The Director stated that the 
record does not contain sufficient information explaining how the Petitioner would meet its stated 
business objectives or its personnel and financial projections. 
In response, the Petitioner provided a statement claiming that it supplemented its original plan with 
additional information in an effort to address the Director's concerns. The Petitioner also 
supplemented the record with additional business documents to show that it has commenced doing 
business and is already generating revenue to offset its business expenses. 
The Director denied the petition, finding that the Petitioner did not provide sufficient evidence to 
establish that it would, one year after the petition's approval, have the ability to employ the 
Beneficiary in a position where the primary portion of his time would be allocated to job duties that 
are in a managerial capacity. The Director pointed to defiCiencies in the Petitioner's business plan 
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Matter of A- USA LLC 
and found that the three managerial and executive positions the Petitioner included in its projected 
organizational chart are not consistent with the proposed nature, scope, and structure of the U.S. 
entity. 
On appeal, the Petitioner submits a brief disputing the Director's findings. The Petitioner restates 
excerpts from its amended business plan and asserts that it addressed the Director's concerns in the 
RFE response. The Petitioner contends that the Director did not properly take into account the 
supplemental evidence that was provided with the RFE response. ' 
B. Analysis 
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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 the United States in a managerial capacity within one year of approval of the petition. 
When examining the managerial capacity of the Beneficiary, we look first to the Petitioner's 
description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The Petitioner's description of the job 
duties must clearly describe the duties performed by the Beneficiary and indicate whether such 
duties are in a managerial capacity. /d. · 
The definition of managerial capacity has two parts. First, the Petitioner must show that the 
Beneficiary performs and 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 is and 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 1533. 
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In addition, it is important to note that when a new business is established and commences 
.operations, the regulations recognize that a designated manager responsible for or assisting with the 
set-up of operations will be engaged in a variety of activities not normally performed by employees 
at the managerial level and that often the full range of managerial responsibility cannot be 
performed. In order to qualify for L-1 nonimmigrant classification during the first year of 
operations, the regulations require the petitioner to disclose the business plans and the size of the 
United States investment, and thereby establish that the proposed enterprise will support a 
managerial position within one year of the approval ofthe petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
This evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly 
expand as it moves away from the developmental stage to full operations, where there would be an 
actual need for a manager who will primarily perform qualifying duties. 
As indicated above, it is critical to consider the Beneficiary's proposed job duties and the 
organizational structure within which he would perform those in order to assess the Petitioner's 
eligibility. Here, the Petitioner provided two job descriptions - one in the initial supporting 
statement and another at section 8.1 of the original businessplan- indicating that the Beneficiary's 
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Matter of A-USA LLC 
job duties would be performed within the context of a multi-tiered organizational hierarchy. 
However, after reviewing the relevant documents, we find that the Beneficiary's job descriptions are 
presented within the context of a hierarchy that is more complex than the one actually depicted in the 
personnel plan portion of the Petitioner's business plan. First, the list of job duties that the Petitioner 
provided in its initial supporting statement indicates that Beneficiary would be responsible for 
overseeing the work of. a chief mechanical engineer. However, the Petitioner's projected hiring 
schedule, as depicted in the personnel table of its business plan, indicates that the Petitioner does not 
intend to fill the position of chief mechanical engineer position until sometime during its second year 
of operation. It is therefore unlikely that the Beneficiary would spend his time overseeing a vacant 
position. Moreover, the organizational chart shows the chief mechanical engineer as overseeing a 
dispatcher and mechanical consultant; however, until such time as the chief mechanical engineer is 
hired, it appears that the Beneficiary would be left to oversee these positions. The Petitioner has not 
established that either the dispatcher or mechanical consultant would be a supervisory, professional, 
or managerial position. The -Beneficiary's management of employees whose positions the Petitioner 
has not established as being supervisory, professional, or managerial cannot be deemed as time spent 
carrying out tasks within a managerial capacity. See section 10l(a)(44)(A)(ii). Given the hiring 
timeframe provided in the personnel plan, the Petitioner has not established that the Beneficiary 
would be relieved of performing this non-qualifying duty at the end of the one year new office 
period. 
Next, based on the job description the Petitioner offered in section 8.1 of its business plan, the 
Beneficiary would oversee "subordinate staff," "staff members," and "staff performing repairs and 
maintenance to vehicles." However, the Petitioner~has not established that the staff the Beneficiary 
would manage one year after the petition's approval would be comprised of supervisory, 
professional, or managerial employees. As stated above, time spent managing non-supervisory, non­
managerial, or non-professional positions will not be considered time spent acting in a managerial 
capacity. See ld. r 
The job description also indicates that the Beneficiary would carry out other nonqualifying job 
duties, including conducting safety audits, attending safety seminars, and engaging in contract 
negotiations with equipment and materials suppliers. Further, while the job description states that 
the Beneficiary would maintain a directorial role with regard to verifying and resolving customer 
complaints, the Petitioner does not clarify or provide evidence to substantiate that one year after 
approval of its petition it would have any employees, other than the Beneficiary, to carry out the 
underlying customer service tasks necessary to address customer complaints. In fact, the personnel 
table on age 31 of the business plan shows that the Petitioner does not intend to hire a customer 
service representative until the third year of its operation, thereby indicating that the Beneficiary 
would likely be tasked with this nonqualifying job duty in addition to the other nonqualifying job 
duties that we previously referenced. 
Lastly, while the Petitioner referred to a "sales force" at section 7.3 of the business plan, claiming 
that a "sales force, more than any other function, is responsible for profit-generation," the record is 
devoid of information clarifying who will comprise "sales force" and whether the "sales force" 
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Matter of A-USA LLC 
would be in place within one year of the petition's filing. Although the employee job descriptions 
indicate the account manager would be tasked with "marketing the business to potential new 
clients," which implies that there is a sales component to the account manager's position, the 
business plan indicates that an account manager would not be hired until the Petitioner's third year 
of operation, thus leaving unanswered the question of who would assume the task of selling the 
Petitioner's services to clients and how the sales tasks would be allocated among the Petitioner's 
existing personnel one year after the petition's approval. Despite the fact that the Beneficiary's 
proposed job description does not indicate that the Beneficiary would carry out the sales function, in 
the absence of a "sales force" or other employees tasked with selling the Petitioner's service, we 
cannot exclude the possibility that at least some of the underlying sales-related tasks would be, in the 
meantime, distributed among the Petitioner's existing staff, including the Beneficiary. 
While no beneficiary is required to allocate 100% of his time to managerial-level tasks, each 
petitioner must establish that the non-qualifying tasks its beneficiary would perform at the end of the 
new office period are only incidental to the proposed position. An employee who "primarily" 
performs the tasks necessary to produce a product or to provide services is not considered to be 
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of 
the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
In light of the above analysis of the Beneficiary's job description within the scope of the Petitioner's 
hiring plan and staffing hierarchy, we find that the Petitioner did not provide sufficient evidence to 
substantiate that it would advance to a stage of development wherein it would have the capability of 
relieving the Beneficiary from having to devote considerable portions of his time to non-managerial 
tasks at the end of the new office period. As such, the Petitioner has not demonstrated that the 
Beneficiary would be employed in a managerial capacity within one year of the approval of the 
petition. 
Ill. CONCLUSION 
The petition will be denied and the appeal dismissed for the above reason. In visa petltwn 
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 ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, 
that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-USA LLC, ID# 8784 (AAO Sept. 20, 2016) 
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