dismissed L-1A Case: Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re: 9970845 
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: SEPT. 24, 2020 
The Petitioner, an air duct products manufacturer and retailer, seeks to continue the Beneficiary's 
temporary employment as its "Sales Manager" under the L-1 A 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's proposed position would be in a managerial or executive 
capacity. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal because 
the Petitioner did not meet that burden. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in a position requiring 
specialized knowledge for one continuous year within three years preceding the beneficiary's 
application for admission into the United States. 8 C.F.R. § 214.2(1)(1). The prospective U.S. 
employer must also be a qualifying organization that seeks to employ a beneficiary in a managerial or 
executive capacity. 8 C.F.R. § 214.2(1)(3)(i). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
As a threshold matter, we decline the Petitioner's request for oral argument. 8 C.F.R. § 103.3(b ). 1 
1 The Petitioner states that its objective in appearing for an oral argument would be to "identify issues related to the 
misrepresentation findings entered into by the Director." However , a comprehensive review of the decisions shows that 
the Director did not enter a finding of misrepresentation . 
Further, although we acknowledge that the U.S. Citizenship and Immigration Services (USCIS) 
approved other petitions that had been previously filed on behalf of the Beneficiary, we will not defer 
to those prior determinations. 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/ defaul t/files/USCIS/Laws/Memoranda/2017/2017-10-23 Rescission-of­
Def erence-PM 6020151. pdf The memorandum also emphasized that "the burden of proof remains on 
the petitioner, even where an extension of nonimmigrant status is sought." Id. 
Accordingly, we will analyze the current record to dete1mine whether the Petitioner has submitted 
sufficient evidence to establish that the Beneficiary's U.S. position would be in a managerial or 
executive capacity. Although the Petitioner's initial submissions and those offered in response to a 
request for evidence (RFE) focused exclusively on the claim that the Beneficiary would be employed 
in an executive capacity, on appeal the Petitioner offers an alternative claim, asserting that the 
Beneficiary's proposed position also fits the criteria of a function manager. We will address both of 
the Petitioner's claims. 
A. Executive Capacity 
First, we will address the Petitioner's primary claim that the Beneficiary's position as its sales manager 
will be employed in an executive capacity. 
"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 definition of executive capacity, the Petitioner must first show that the 
Beneficiaiy will perform certain high-level responsibilities. Section IO I (a)( 44 )(B) of the Act. The 
Petitioner must also prove that the Beneficia1y will be primarily engaged in 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). 
The description of the job duties must clearly describe the duties to be perfmmed by the Beneficiary 
and indicate whether such duties are in a managerial or an executive capacity. See 8 C.F.R. 
§ 214.2(1)(3)(ii). Beyond the required description of the job duties, we examine the employing 
company's organizational structure, the duties of the Beneficiary's subordinate employees, the 
presence of other employees to relieve the Beneficiary from performing operational duties, the nature 
of the business, and any other factors that will contribute to understanding the Beneficiary's actual 
duties and role in the business. If staffing levels are used as a factor in determining whether an 
individual is acting in a managerial capacity, we take into account the reasonable needs of the 
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organization in light of the overall purpose and stage of development of the organization. See section 
101(a)(44)(C) of the Act. 
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. 
1. Factual Background 
At the time of filing the Petitioner claimed 42 employees and $3.25 million in gross earnings, stating 
that the Beneficiary would be compensated $50,000 annually. In a supporting statement, the Petitioner 
stated that the Beneficiary would have "100% discretion" over the sales function and over a 
salesperson and an "estimator," both of whom the Beneficiaiy would "directly supervise." The 
Petitioner provided a job duty breakdown stating that the Beneficiary would allocate his time as 
follows: 
• 10% to overseeing marketing strategies and analyzing trends; 
• 20% to forecasting sales and developing annual sales quotas; 
• 20% to overseeing the development of "field sales action plans"; 
• 20% to stay informed of supply and demand, changing trends, economic indicators, and 
competitors; 
• 20% to making price recommendations; and 
• 10% to overseeing the recruitment, evaluation, and training of a "national sales staff" 
The Petitioner also provided an organizational chart showing a chairman at the top of the organization, 
which is comprised of three departments - technical, administrative and operations, and sales and 
marketing - each headed by a director. The Beneficiary is depicted as subordinate to the director of 
sales and marketing and is shown as directly overseeing an "estimator" and one salesperson. The 
remainder of the sales and marketing department consists of one named salesperson and three 
"proposed" sales positions, all of whom are depicted as subordinates of the "estimator." 
In response to an RFE, the Petitioner stated that the Beneficiary "is required to direct [the] organization 
including the goals and polices in the sales function," which the Petitioner described as "a major 
function" by virtue of its role as the sole revenue generator. The Petitioner further stated that "all" of 
the Beneficiaiy's time is devoted to executive job duties and provided the following new job duty 
breakdown accounting for 95% of the Beneficiary's time as follows: 
• 20% to setting sales objectives, policies, and sales quotas for regions and territories; 
• 20% to discussing, communicating, and overseeing "field sales action plans" and results; 
• 10% to attending conferences to network within the industiy; 
• 20% to setting prices based on costs, competition, and supply and demand; 
• 15% to setting and changing sales strategies according to trends and "competitor tactics"; 
• 5% to overseeing and supervise training; and 
• 5% to supervising the assistant sales manager and making hiring and firing decisions. 
The Petitioner also addressed the organization's staffing, and in particular that of the sales and 
marketing department, stating that the Beneficiary will "directly supervise" an assistant manager and 
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an "estimator" and that he would also have four subordinate salespeople. In addition, the Petitioner 
provided a new organizational chart, which shows a different staffing hierarchy and includes an 
assistant sales manager, a position that was not included in the original organizational chart. The new 
chart shows the Beneficiary directly overseeing an "estimator," a salesman, and an assistant sales 
manager, the latter of whom is shown as overseeing three additional salesmen. The Petitioner also 
provided paystubs and payroll summaries for the employees in the sales and marketing department. 
After reviewing the evidence, the Director denied the petition, concluding that neither the 
Beneficiary's job description nor the Petitioner's staffing establish that the Beneficiary would 
primarily perform executive job duties or that he would be elevated to an executive position. 
On appeal, the Petitioner asserts that the Director "mischaracterized the nature of [the] Beneficiary's 
responsibilities and disregarded his placement within the organizational hierarchy." The Petitioner 
further contends that the Beneficiary is responsible for functions that "directly influence decision 
making at the highest level" and is not involved in daily sales. 
2. Analysis 
The Petitioner's assertions are not supported by the evidence in the record. First, although the 
Petitioner contends that the Beneficia1y' s job duties are almost exclusively executive in nature, it has 
not provided sufficient insight into the job duties listed in the original job description; rather, it offered 
a new job description that exclude some of the originally listed job duties and added several new job 
duties that appear to reflect staffing changes that were not in place when this petition was filed. 
Namely, although the original job duty breakdown stated that the Beneficiary would oversee 
marketing strategies and a "national sales staff," the new job duty breakdown excludes these duties 
and allocates time to new job duties, such as overseeing and supervising employee training and 
supervising an assistant sales manager, who was not part of the sales and marketing team at the time 
this petition was filed. 
The Petitioner also provided an updated organizational chart showing a noticeably different staffing 
hierarchy than the one depicted in the initially submitted organizational chart. As noted earlier, the 
initial organizational chart named one salesperson and an "estimator" as the Beneficiary's direct 
subordinates, while one other salesperson and three "proposed" sales positions were shown as 
subordinates of the "estimator." The updated organizational chart, however, indicates that the 
Beneficiary would oversee a salesperson and an assistant sales manager, who would oversee three 
salespeople. The chart is unclear as to who would oversee the "estimator," whose position is not 
clearly depicted as subordinate to anyone in particular within the sales and marketing department. 
Furthe1more, employee paystubs show that the "estimator" was compensated at a rate that exceeded 
that of the Beneficia1y and the assistant sales manager, 2 thus leading us to further question the chain 
of command within the sales and marketing department. 
Regardless of any job duty or staffing changes, the Petitioner must establish that all eligibility 
requirements for the immigration benefit have been satisfied from the time of the filing and continuing 
2 The Petitioner provided employee paystubs showing that the "estimator" was paid $1211.54 on a weekly basis, while the 
Beneficiary was paid $980.39 and the assistant sales manager was paid $3 89. 73. 
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through adjudication. 8 C.F.R. § 103.2(b)(l). Because the job duty breakdown and staffing changes 
discussed in the RFE response took place after this petition was filed, they are not relevant for the 
purpose of determining whether eligibility existed at the time ojjiling. Therefore, we will rely on the 
initial organizational chart and employee job descriptions to determine whether the Petitioner 
established eligibility for the benefit sought. 
Turning first to the Beneficiaiy' s job duty breakdown, the Petitioner offered general infmmation that 
did not adequately disclose the Beneficiary's daily tasks within the sales and marketing department. 
For instance, the Petitioner stated that the Beneficiary would oversee marketing strategies, but it did 
not elaborate on any such strategies or provide specific information about its marketing plans 
establishing what its marketing needs are or the staffing that is required to meet those needs. As such, 
although the Petitioner claimed that the "estimator" would allocate 10% of his/her time to preparing 
"promotional material or events," this information is not sufficient to establish that at the time of filing 
the Petitioner was adequately staffed with subordinate employees who could relieve the Beneficiary 
from having to perform non-executive marketing tasks as a routine part of his daily or weekly activities 
within the context of a sales and marketing department. 
The Petitioner also stated that the Beneficiary would forecast and develop annual sales quotas and 
oversee "development of developing field sales action plans." However, the Petitioner provided no 
insight as to the underlying tasks the Beneficiary would perform to determine the sales quotas. The 
Petitioner also did not explain what "field sales action plans," thereby precluding an understanding of 
the actions are required to develop such plans. Likewise, despite claiming that "keeping current" with 
supply and demand and economic indicators is critical for the Beneficiary's ability to "maintain[] sales 
volume and selling price," the Petitioner did not explain who, if not the Beneficiary, would gather the 
underlying data on supply and demand or the market infmmation on economic indicators. We note 
that 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, e.g., 
sections 10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); Matter of Church Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 
1988). As such, we look to a beneficiary's actual duties themselves to reveal the true nature of the 
employment. 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). Here, the Petitioner has not provided the necessary detail or an adequate 
explanation of the Beneficiaiy' s activities in the course of his daily routine. 
Further, although the Petitioner stated that the Beneficiary would have the authority to make pricing 
recommendations, it is unclear whether the degree of authority he would have over this component 
would be consistent with that of an executive. Given that the sales and marketing director, rather than 
the Beneficiaiy himself, is depicted at the top of the sales and marketing department's hierarchy, it is 
reasonable to conclude that the department director would exercise ultimate discretion over pricing as 
well as the goals and policies of the department and that the Beneficiary would be subject to this higher 
authority. Despite claiming that the Beneficiary would direct the management of the sales and 
marketing function in an executive capacity, the Petitioner has not provided evidence demonstrating 
that the Beneficiary would establish the goals and policies of that function or that he would exercise 
wide discretionary decision-making consistent with an executive-level employee. See Section 
101(a)(44)(B)(ii) and (iii) of the Act. 
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On appeal, the Petitioner asserts that the Director did not properly consider the Beneficiary's job duties 
and placement within the Petitioner's organizational hierarchy. As previously noted, a detailed job 
description is a critical factor in determining whether a given position meets the statutory definition. 
See 8 C.F.R. § 214.2(1)(3)(ii). The analysis provided above points to various evidentiary deficiencies, 
which preclude a meaningful understanding of the Beneficiary's daily tasks and lead us to question 
whether the sales and marketing department was adequately staffed at the time of filing to support the 
Beneficiary in an executive 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). 
Further, as previously discussed, the record does not show that the Beneficiary would have an 
executive level of authority within the context of the Petitioner's sales and marketing department, 
which is headed by a sales and marketing director. 
Although the Petitioner points to statements fro ml I director of the sales and marketing 
department, and I l neither adequately supports the Petitioner's claims regarding 
the Beneficiary's U.S. employment in an executive capacity. The latter statement pertains to the 
Beneficiary's foreign employment and is therefore not relevant to a determination of whether his 
proposed employment would be in an executive capacity. Although the statement froml I 
is relevant because it pertains to the Beneficiary's proposed employment, it includes a new job duty 
breakdown that lists several new job duties and includes a changed percentage breakdown. The new 
job duty breakdown does not expand on the original set of job duties or convey a more comprehensive 
list of the Beneficiary's proposed daily or weekly activities at the time ojjiling. Further, although 
I I points to the Beneficiary's discretionary authority over certain elements within the 
sales and marketing department, the record does not show that the Beneficiary would primarily 
establish the department's goals and policies. As noted earlier, the Petitioner must support its 
assertions with relevant, probative, and credible evidence. See Chawathe, 25 I&N Dec. at 376. 
In light of the deficiencies described above, we cannot conclude that the Beneficiary would be 
employed in an executive capacity. 
B. Managerial Capacity 
We now tum to the Petitioner's alternate claim that the Beneficiary would be employed in a managerial 
capacity by virtue of managing 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 
101(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. If a petitioner claims that 
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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 "(l) 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, 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 
beneficiaiy will exercise discretion over the function's day-to-day operations." Matter of G- Inc., 
Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
The Petitioner identifies "sales and marketing" as an essential function within its organization, which 
manufactures, sells, and distributes "unique HVAC products." Although the Petitioner claims that the 
Beneficiary is a function manager who manages an essential function, its claim is limited to the sales 
aspect of that function. The Petitioner remains silent as to the Beneficiary's role, if any, in managing 
the marketing aspect of that function. As such, the Petitioner has not adequately raised or substantiated 
the claim that the Beneficiary would manage an essential function within the organization. 
ORDER: The appeal is dismissed. 
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