dismissed L-1A Case: Manufacturing And Distribution

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-P-T-P-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 24, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a "safety wear" manufacturing and distribution firm, seeks to extend the 
Beneficiary's temporary employment as its "Distribution Center Operations Supervisor" under the 
L-1A 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 of the Vermont Service Center denied the petition concluding that the Petitioner did not 
submit sufficient evidence to establish that the Beneficiary would be employed in a managerial or 
executive capacity under the extended petition. 
On appeal, the Petitioner submits additional evidence and a brief disputing the basis for denial. The 
Petitioner asserts that, while the Beneficiary may perform some non-qualifying duties, he primarily 
manages an essential function ofthe petitioning 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 position involving 
specialized knowledge, 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 evidentiary requirements for filing an L~ 1 classification petition are 
located at 8 C.F.R. § 214.2(1)(3). 
The term "managerial capacity" is defined as "an assignment within an organization in which the 
employee primarily": 
Matter of R-P-T-P-, Inc. 
(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. 
Section 101(a)(44)(A) of the Act. Further, "[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." I d. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary would be employed in a 
managerial or executive capacity under the extended petition. However, the Petitioner does not 
claim that the Beneficiary is an executive. Therefore, we restrict our analysis to whether the 
Beneficiary will be employed in a managerial capacity. 
The Petitioner claims that the Beneficiary's position involves management of an essential function as 
well as supervision of subordinate personnel. 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 primarily supervise or control the work of a subordinate staff but instead is 
primarily responsible for managing an "essential function" within the organization. Id. We will 
consider whether the Beneficiary meets the criteria for both "function manager" and "personnel 
manager" below. 
A. Function Manager 
When examining the managerial capacity of the Beneficiary, we will look first to the Petitioner's 
description of the job duties. See 8 C.P.R. § 214.2(1)(3)(ii). Based on the statutory definition 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 
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Matter of R-P-T-P-, Inc. 
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 1533. 
In the Form I-129 L Classification Supplement, the Petitioner divided the Beneficiary's duties into 
three different sections. The Petitioner stated he would allocate 50% of his time to the following: 
Responsible for daily [m]anaging of all warehouse activities to ensure efficient 
allocation of resources and compliances [sic] with policies and procedures; [ m ]onitor 
and review employees' work activities through individual meetings and group 
meetings . . . ; [ d]elegate and advise employees on work procedure and practices; 
[ m ]otivate, develop, and mentor employees for improved performance. Oversee 
other personnel activities including interviewing job applicants, new employee 
orientation & training, performance counseling and discipline including termination; 
[ m ]ay attend outside meetings such as company group meetings and training seminars 
for both information sharing and learning purposes; [m]ay at times visit other 
facilities to assist in start-up operations, evaluate current procedures and assist in 
operational improvements; [f]acilitate all forklift training and administer OSHA 
certification tests with all warehouse associates and maintain records accordingly. 
The Petitioner stated that an additional 40% of the Beneficiary's time will be spent on these duties: 
On a daily basis, supervise and delegate work assignments to operational staff; 
[c]onsult with [the d]istribution [m]anager as needed; [m]anage and control daily 
warehouse activities including cycle counts, equipment maintenance, and problem 
solving as needed; [s]erve as liaison to Core's IT department for scan gun and 
CORE/MAS maintenance; [a]rrange shipment form warehouse as directed, including 
providing instruction to warehouse staff; [ w ]ork with management to develop 
improvements in production and safety procedures, proper strapping, etc. 
Finally, the Petitioner stated the Beneficiary would devote 1 0% of his time to the following: 
Seek constant improvement, more efficient initiatives in the work processes; 
[p ]erform special projects and other miscellaneous duties as assigned by 
management; [f]ollow up to complete any assigned work; [m]aintain high ethical 
standards in the work place; [r]eport all irregular issues and problems to manager for 
solution; [m]aintain good communication with Team Leaders, staff members, and 
outside contacts; [ c ]omply with all company policies and procedures; [ r ]esponsible 
for maintaining a dean safe working area. 
In addition, the Petitioner provided the Beneficiary's resume in which the Beneficiary stated that he 
is responsible for supervising warehouse personnel,. importing-exporting raw material process, 
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Matter of R-P-T-P-, Inc. 
receiving finished goods, and inventory control and quality audits. The Beneficiary also listed the 
following duties as part of his position in the United States: 
• Warehouse personnel [ s ]upervisor 
• Assign and review activities to be performed by warehouse personnel 
• Customer order fulfillment review and analysis 
• Review order status and due dates report 
• Work directly with manufacturing facility on product shortages 
• Shipping [r]eport [s]chedule for [c]ustomer [s]ervice [e]xecutives 
• Expedite [ o ]rder [ s ]hipment upon [ c ]ustomer[']s request 
• Confirm shipments are scheduled with transportation carriers 
• Coordinate and [ s ]upervise [p ]roduct [ e ]mbroidery process 
• Supervise and prepare [ ri1 ]aterials for outsourcing suppliers 
• Person of contact for manufacturing facility 
• Finish [p ]roduct [i]nventory [ c ]ontrol and [a ]nalysis 
• Coordinate [ c ]ycle counts and accurate inventory 
• Supervise process material being send [sic] to manufacturing facility 
• Maintain [f]inish [g]oods [i]nventory [o]rganized 
• Assign [b]in [l]ocations to product being received 
The Director issued a request for evidence (RFE) advising the Petitioner that the initial evidence was 
insufficient to establish that it would employ the Beneficiary in a managerial capacity. The Director 
offered the Petitioner an opportunity to resolve this evidentiary deficiency by submitting, in part, a 
statement containing a more detailed list of the Beneficiary's job duties and the percentage of time 
he would allocate to each job duty and explaining how the Beneficiary would meet each prong of the 
four-prong definition of managerial capacity. 
In response, the Petitioner provided a letter stating that "timely shipment of customer orders is the 
most essential function" and further claiming that the Beneficiary will perform an essential function 
of the business and manage "a key component of the organization, supervise[] other employees, 
[have] the authority to hire and terminate subordinate employees, and exercise(] a great deal of 
discretion on the day[-]to[-]day operations of the [ d]istribution [ c ]enter." The letter also contained a 
job description that divided the Beneficiary's duties into three categories - supervisory duties 
requiring 50% of his time, warehouse coordination duties requiring 40% of his time, and 
"[ m ]iscellaneous and other" duties requiring 10% of his time. 1 
The Petitioner also provided two organizational charts - one depicting a broader view of the entire 
organization and the other depicting a more specific view of the Petitioner's distribution center 
staffing. The latter chart, dated August 2016, shows a distribution center manager in the senior 
position with the Beneficiary as his direct subordinate. Two operations team leaders, one 
responsible for shipping and the other for embroidery, report to the Beneficiary and are depicted as 
1 
The job duties within each category were identical to those contained in the original job description, stated above. 
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Matter of R-P-T-P-, Inc. 
supervising eight workers who perform shipping, receiving, embroidery and quality control tasks. In 
addition, the Petitioner provided brief job descriptions for all distribution center employees, noting 
that the distribution center manager oversees all distribution activities, including budget, building 
maintenance, personnel staffing, and operations, while the Beneficiary oversees 10 "operators" in 
the day-to-day shipping, receiving, and inventory process. 
In denying the petition, the Director determined that the evidence did not establish that the 
Beneficiary would be employed in a managerial capacity. The Director observed that the 
Beneficiary's job description indicates that he would perform both managerial and non-managerial 
job duties and further determined that the Petitioner did not demonstrate that the Beneficiary's 
primary duties would be managerial in nature. 
On appeal, the Petitioner restates prior claims regarding the Beneficiary's role in managing "a key 
component" and supervising employees and reiterates that the Beneficiary has the authority to hire 
and fire employees and exercise discretion over the daily activities of the organization's distribution 
center. The Petitioner also restates the job description that was submitted in response to the RFE and 
provides another job description reflecting additional tasks that the Beneficiary has performed since 
the position of the distribution center operations manager became vacant in September 2015. 
While we acknowledge the Petitioner's submission of additional job duties associated with the 
position of distribution center operations manager, we find that such information is irrelevant in the 
matter at hand. The Petitioner filed the instant petition in June 2016, approximately eight months 
after it claims the Beneficiary's superior departed from his position. If the Petitioner had intended 
for the Beneficiary to assume the position of distribution center operations manager rather than that 
of distribution center operations supervisor, it could have indicated as such when it filed the 
petition. However, it did not do so and, instead, indicated that the Beneficiary's proposed position is 
that of supervisor of distribution center operations. Therefore, the record does not establish that the 
Petitioner intended for the Beneficiary to take over and perform the job duties of the distribution 
center operations manager under the extended petition. 
Moreover, the Petitioner's organizational chart submitted in response to the RFE indicates that the 
distribution center manager position was occupied as of August 1, 2016. As such, the chart is 
inconsistent with the Petitioner's current claim on appeal, which indicates that the position of 
distribution center manager has remained vacant since 20 15. We also note that the Petitioner did not 
indicate in any of its supporting documents at the time of filing or in response to the RFE that the 
Beneficiary had assumed or would assume additional duties as the distribution center manager. The 
Petitioner has not resolved this anomaly with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Furthermore, a petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). Here, adding the 
job duties of another position to the Beneficiary's existing job description would be deemed a 
material change. Therefore, the only job duties we will consider in this proceeding are those 
associated with the Beneficiary's proposed position of distribution center operations supervisor. 
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Matter of R-P-T-P-, Inc. 
Moving on to a discussion of the Beneficiary's job duties, we note that the Petitioner claimed in the 
RFE response, and now claims on appeal, that the Beneficiary will assume the role of a function 
manager. As noted, 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 101(a)(44)(A)(ii) ofthe Act. 
If a petitioner claims that a beneficiary will manage an essential function, that 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 the duties related to 
the function. See Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). In this 
matter, the Petitioner has not provided evidence that the Beneficiary will manage an essential 
function. 
First, we note that the Petitioner makes two competing claims by indicating that the Beneficiary 
"performs an essential function" within the Petitioner's business while also claiming that the 
Beneficiary "manages a key component of the organization," which is indicative of managing an 
essential function. The Petitioner explained that its "core business strategy" is focused on ensuring 
that customers receive their orders on time and that "timely shipping of customer orders" is its most 
critical function. As indicated above, one of the key requirements for demonstrating that a 
beneficiary manages an essential function is establishing that the beneficiary does not actually 
perform the underlying duties of that function. Thus, in order to establish the role of a function 
manager, the Beneficiary cannot both manage the essential function and perform the underlying 
duties associated with that function. While the Beneficiary may perform some operational or 
administrative tasks, the function manager must primarily manage the essential function. See Matter 
of Church Scientology Int 'l, 19 I&N Dec. 593, 604 (Comm'r 1988) ("[T]he employee's duties must 
be primarily at the managerial or executive level. An employee who primarily performs the tasks 
necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity."). The Petitioner's claim that the Beneficiary will "perform[] an 
essential function" is inconsistent with the claim that the Beneficiary will primarily manage that 
function. 
Further, the Beneficiary's job description does not establish that the Beneficiary would primarily 
allocate his time to managing a function. Despite the Director's instruction to allocate the amount of 
time the Beneficiary would allocate to specific tasks, the Beneficiary's job description groups 
together multiple job duties to which the Petitioner assigned a single percentage of time, thereby 
leaving us without any means of determining how much time the Beneficiary would allocate to each 
job duty within the group. 
On appeal, the Petitioner contends that conducting "simple math" is sufficient to arrive at a specific 
percentage of time that would be allocated to each job duty. However, the Petitioner's reference to 
"simple math" is based on the assumption that the Beneficiary would spend the same amount of time 
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Matter of R-P-T-P-, Inc. 
performing each job duty within a given category so that in order to determine each duty's specific 
time allocation we should divide the overall percentage of time by the number of job duties in a 
particular category. The Petitioner does not, however, provide any basis for claiming that this 
formula applies to the listed job duties, as there is no evidence in the record to suggest that all duties 
within a given category would be assigned the same time component. Therefore, we cannot assume 
that managing warehouse activities in the "supervisory" category would consume the same amount 
of the Beneficiary's time as, for instance, monitoring employee activities or delegating duties and 
advising employees on work procedures, which are all in the same category. The Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
I&N Dec. 369, 376 (AAO 2010). 
In addition to the lack of specific time allocations, the job description itself appears to allocate more 
than half of the Beneficiary's time to personnel supervision duties, thereby indicating that such 
duties are not merely incidental to managing a function, but rather are key aspects of the 
Beneficiary's proposed position. More specifically, in reviewing the duties that comprise the 
"supervisory" category, most of the listed duties - with the exception of attending meetings and 
training seminars and visiting other facilities to assist with start-up operations- involve overseeing 
or training employees. Likewise, while the "warehouse coordination category" is not on its face 
indicative of personnel management, this category also contains job duties related to managing 
personnel, including supervising and delegating work to "operational staff' and "providing 
instruction to warehouse staff." 
Further, despite indicating that the "warehouse coordination" category includes managing and 
controlling daily warehouse activities, which is indicative of managing a function, the Petitioner did 
not clarify what actual tasks the Beneficiary would perform to establish how he would manage and 
control warehouse activities. The category "Miscellaneous and Other" also contains various 
ambiguities as to the specific tasks the Beneficiary would perform. Namely, the Petitioner stated 
that the Beneficiary would perform "special projects and other miscellaneous duties," "complete any 
assigned work," and "[m]aintain high ethical standards." However all three phrases are vague and 
do not specify the actual underlying tasks the Beneficiary would perform. The actual duties 
themselves will 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). As such, reciting the 
Beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient and does 
not satisfy the regulatory requirement for a detailed description of the Beneficiary's daily job duties. 
Moreover, the Beneficiary's job description does not establish that his primary concern would be 
managing and controlling warehouse activities to ensure timely product delivery. 
Lastly, the Petitioner did not establish that the Beneficiary has discretion over the daily operations of 
the distribution center or that he functions at a senior level with respect to the distribution center. As 
indicated above, the Beneficiary's job description focuses on his discretion over personnel and 
personnel-related issues and does not specify which duties represent the Beneficiary's discretion 
over the day-to-day operations of an essential function. See id. Further, the distribution center's 
Matter of R-P-T-P-, Inc. 
staffing hierarchy shows that the Beneficiary is subject to oversight from the distribution center 
manager and therefore is not at a senior level within the department. 
The Petitioner emphasizes that we should consider "the [B]eneficiary' s pos1t1on within the 
organizational hierarchy, the depth of the petitioner's organizational structure, the scope of the 
beneficiary's authority and its impact on the petitioner's operations, the indirect supervision of 
employees with respect to the function managed, and the value of the budgets, products, or services 
that the beneficiary manages." 
Here, while we have considered these factors, the record as a whole does not support a finding that 
the Beneficiary would be employed primarily as a function manager. The distribution center 
manager occupies the senior position in the hierarchy with respect to this function, and the Petitioner 
indicated that the distribution center manager oversees all distribution activities, including budget, 
building maintenance, personnel staffing, and operations, while the Beneficiary oversees 1 0 
"operators" in the day-to-day shipping, receiving, and inventory process. This hierarchy further 
illustrates the Beneficiary's role as a supervisor, rather than as a function manager, within the 
distribution center department. 
In light of the above, we find that the record does not establish that the Beneficiary would be 
employed in a position where he would manage an essential function of the organization. 
B. Personnel Manager 
As mentioned above, despite the Petitioner's claim that it would employ the Beneficiary in the 
capacity of a function manager, the Ben~ficiary's job description reflects that his primary focus 
would be on the supervision of subordinate personnel. Therefore, while we have considered the 
Petitioner's function manager claim, we will also consider whether the Beneficiary's proposed 
position would qualify as that of a personnel manager. 
As noted, 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. Contrary to the common understanding of the word "manager," 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)(iv) of the Act. If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. Section 101(a)(44)(A)(iii) ofthe Act. 
Based on the Beneficiary's placement within the distribution center's staffing hierarchy and the 
Beneficiary's list of job duties, we find that the Beneficiary's discretionary authority over his 
claimed subordinates is not at issue. Nevertheless, we find that the record lacks sufficient evidence 
to establish that the Beneficiary's subordinates are supervisory, professional, or managerial 
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Matter of R-P-T-P-, Inc. 
employees. A managerial or executive employee must have authority over day-to-day operations 
beyond the level normally vested in a first-line supervisor, unless the supervised employees are 
professionals. Church Scientology Int 'l, 19 I&N Dec. at 604. 
The Director determined that the Petitioner did not establish that the Beneficiary's subordinate staff 
consists of supervisory, professional, or managerial employees. On appeal, the Petitioner states that 
it "does not dispute this finding because beneficiary is a function manager." 
The record supports the Director's conclusion. While the distribution center's organizational chart 
indicates that the Beneficiary will oversee the work of two team leaders, whose positions the chart 
depicts as supervisory, the employee job descriptions that accompany the chart are vague and do not 
indicate that the team leaders would perform supervisory tasks. Furthermore, the Beneficiary's own 
job description does not indicate that his supervisory duties extend only to the team leaders; rather 
the job description indicates that the Beneficiary would be responsible for directly supervising the 
distribution center's entire operational staff. 
In evaluating whether a beneficiary manages professional employees, we must evaluate whether the 
subordinate 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 
U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation"). Section 101 ( 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." Here, the employee list the Petitioner 
provided with the organizational chart indicates that no one within the distribution center's 
operational staff had above a high school level education. Thus, the Petitioner has not shown that 
the Beneficiary would oversee subordinate employees who are supervisory, professional, or 
managerial, as required by section 101(a)(44)(A)(ii) ofthe Act. 
Based on the totality of the record, while the Beneficiary may be instrumental in supervising the 
day-to-day shipping and receiving activities of the company, his duties are primarily focused on the 
first-line supervision of non-professional personnel, rather than the higher-level duties associated 
·with the management of an essential function. 
III. CONCLUSION 
For the reasons discussed above, the evidence submitted does not establish that the Beneficiary 
would be employed in a managerial capacity under the extended petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of R-P-T-P-, Inc., ID# 316267 (AAO Apr. 24, 2017) 
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