dismissed L-1A Case: Manufacturing And Trade

U.S. Citizenship 
and Immigration 
Services 
MATTER OF O-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 7, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a manufacturer and trader of dunnage air bags, seeks to temporarily employ the 
Beneficiary as "the head of sales and president" of its new office I under the L-1 A nonimmigrant 
classification for intracompany transferees. Immigration and Nationality Act (the Act) 
section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-lA 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 California Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary is employed abroad in a managerial or executive capacity. 
Further, the Director determined that the Petitioner did not demonstrate that the Beneficiary would 
be employed in a managerial or executive capacity in the United States within one year. 
On appeal, the Petitioner asserts that the Director issued an improper blanket request for evidence 
(RFE) and contends that it was prejudiced when provided with only two weeks to respond to the 
RFE. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity 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)(3)(v)(B). 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. 
1 The tenn "new office" refers to an organization which has been doing business in the United States for less than one 
year. 8 C.F.R. § 214.2(l)(l)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
Matter of 0-S-
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and 
scope of the entity, its organizational structure, its financial goals, and the size of the U.S. 
investment. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. MANAGERIAL CAPACITY WITH THE FOREIGN EMPLOYER 
We will first analyze whether the Petitioner established that the Beneficiary is employed abroad in a 
managerial capacity. The Petitioner does not claim that the Beneficiary is employed abroad in an 
executive capacity. Therefore, we restrict our analysis to whether the Beneficiary has been 
employed abroad in a managerial capacity. 
"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. 
When examining the foreign managerial capacity of a given beneficiary, we will review 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 capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of the job 
duties, we examine the foreign employer's organizational structure, the duties of a beneficiary's 
foreign subordinates, the presence of foreign employees to relieve a beneficiary from performing 
operational duties, the nature of the foreign business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role abroad. Accordingly, we will discuss evidence 
regarding the Beneficiary's job duties along with evidence of the nature of the foreign employer's 
business, its staffing levels, and its organizational structure. 
A. Duties 
Based on the definition of managerial capacity, the Petitioner must first show that the Beneficiary 
performs 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 
primarily engaged in managerial duties, as opposed to ordinary operational activities alongside the 
foreign employer'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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Matter of 0-S-
The Petitioner, the Beneficiary's foreign employer based primarily in Hong Kong, stated that it "is 
an international company engaged in the business of manufacturing and trading of dunnage air bags 
and other cargo securing items for the transportation business." The Petitioner indicated that the 
Beneficiary had been "engaged in managerial and marketing management duties" and that he was 
"assigned to several projects of importance." The Petitioner explained that the Beneficiary handled 
its European operations for the last three years as a sales manager, and that he had previously 
worked in a similar capacity for six years prior to the date the petition was filed. It also listed the 
following foreign duties for the Beneficiary, amongst others: 
• sets targets, performance plans, and rigorous objective standards for the sales 
team, 
• meets with sales staff to review weekly performance, 
• delivers deep reviews for each sales team member, 
• creates and checks quarterly commission reports, 
• coaches individual sales members to improve sales performance, 
• disciplines and reports underperforming sales persons, 
• plans and implements training programs, 
• presides over weekly sales team meetings, 
• maintains a deep understanding of customer needs and monitors their preferences, 
• resolves escalated customer issues and complaints, 
• sets and adjusts pricing plans and discount rates, 
• provides advanced negotiation expertise, 
• makes sure that data in MOSS is kept up to date and ensures the information 
given online is correct and of recent status, 
• creates monthly newsletters and manages advertising campaigns, 
• develops marketing campaigns, including web presence and catalogue 
development, and 
• handles social media, public relations efforts, and content marketing. 
The Director later issued a request for evidence (REE) indicating that the Beneficiary's foreign duty 
description lacked specificity and requested that the Petitioner submit a letter from the foreign 
employer describing his typical managerial duties and the percentage of time he spends on each task. 
In response, the Petitioner did not provide a comprehensive foreign duty description as requested, 
but submitted the Beneficiary's resume, which listed some of the following additional duties and 
accomplishments . 
• establish the brand name as a global Top 3 product, 
• plan, budget and execute exhibitions and trade fairs worldwide, and 
• head of sales and marketing teams in the international group, the 
world larges [sic] manufacturer of cargo securing products . 
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Matter of 0-S-
On appeal, the Petitioner contends that the Director issued an overly burdensome blanket RFE and 
asserts that it was not provided with sufficient time to respond. We do not find these assertions 
convincing. First, the record reflects that the Director issued the RFE on May 29, 2018 and required 
that the Petitioner respond by August 24, 2018, a period of nearly three months. This appears to be 
more than sufficient time to respond to an RFE. In fact, the record reflects that the Petitioner 
responded to the RFE approximately two weeks later on June 13, 2018. 
Further, we do not concur with the Petitioner's assertion that the Director's RFE was overly general 
or burdensome. The purpose of an RFE is to elicit further information that clarifies whether 
eligibility for the benefit sought has been established. 8 C.F .R. § 103 .2(b )(8). In addition, it is the 
Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799,806 (AAO 2012). In order to 
establish eligibility, the Petitioner must demonstrate all the regulatory requirements, including 
establishing that the Beneficiary is employed in a managerial or executive capacity abroad. In 
support of the petition, the Petitioner submitted a general duty description that lacked detail; as such, 
the Director requested a more detailed foreign duty description describing the Beneficiary's typical 
managerial duties and the percentages of time he spends on these tasks. The Petitioner did not 
respond to this relevant request. Therefore, we see nothing improper about the Director's RFE. 
The Petitioner has not submitted a sufficiently detailed duty description that describes the 
Beneficiary's day-to-day managerial-level duties abroad or credibly establishes that he devotes his 
time primarily to qualifying tasks. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily managerial in nature, otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. 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). 
The Beneficiary's duty description includes several generic duties that could apply to any manager 
acting in any business or industry and they do not provide insight into the actual nature of his role 
abroad. The Petitioner provided insufficient examples and little supporting documentation to 
demonstrate the Beneficiary's performance of qualifying duties abroad, such as targets he set, 
performance plans he put in place, standards he implemented, or training programs he established. 
Likewise, the Petitioner did not adequately detail or document customer issues the Beneficiary 
resolved, pricing or discount plans he put in place, negotiations he conducted, advertising campaigns 
he managed, or marketing campaigns he developed. In addition, the Petitioner did not articulate or 
document sales strategies the Beneficiary created, plans he established to address performance gaps, 
or workshops and educational trainings he attended. The Petitioner claims that the Beneficiary 
oversees a team "of several strong top management professionals," but the record includes little 
supporting documentation to substantiate that he delegates duties to these claimed subordinates. 
This lack of detail is particularly noteworthy since the Petitioner indicates that the Beneficiary has 
been working for the foreign employer for approximately six years. 
The Beneficiary's foreign duties also include several apparent non-qualifying tasks, such as 
resolving customer issues and complaints, reviewing data in "MOSS," creating a monthly 
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Matter of 0-S-
newsletter, handling social media, and monitoring sales orders from rece1vmg until shipping. 
Whether the Beneficiary is a managerial employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" managerial. See sections 101(a)(44)(A) of the 
Act. Here, the Petitioner does not document what proportion of the Beneficiary's foreign duties are 
managerial functions and what proportion are non-qualifying. The Petitioner lists the Beneficiary's 
duties as including both managerial tasks and administrative or operational tasks, but does not 
quantify the time the Beneficiary spends on these different duties. This lack of documentation is 
important because several of the Beneficiary's daily tasks, as discussed above, do not fall directly 
under managerial duties as defined in the statute. For this reason, we cannot determine whether the 
Beneficiary is primarily performing the duties of a manager. See IKEA US. Inc. v. US. Dept. of 
Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Even though the Beneficiary holds a senior position within the foreign employer, the fact that he 
manages or directs the business does not necessarily establish eligibility for classification as an 
intracompany transferee in a managerial capacity within the meaning of section 101(a)(44) of the 
Act. By statute, eligibility for this classification requires that the duties of a foreign position be 
"primarily" managerial in nature. Id. The Beneficiary may exercise discretion over the foreign 
employer's day-to-day operations and possess the requisite level of authority with respect to 
discretionary decision-making; however, the position descriptions alone are insufficient to establish 
that his actual duties abroad are primarily managerial in nature. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, the reasonable needs of the organization are taken into account in light of the overall 
purpose and stage of development of the organization. See section 101(a)(44)(C) of the Act. 
As discussed, the Petitioner stated in a support letter provided with the petition that the Beneficiary 
supervised "a team of strong top management professionals" and his duty description indicated that 
he oversaw sales staff. In the RFE, the Director noted that the Petitioner did not provide sufficient 
evidence to demonstrate the Beneficiary's subordinates and requested that it submit an 
organizational chart showing the Beneficiary place within the company, including his subordinates 
by name and job title along with their duties, education levels, and salaries. Again, we examine the 
foreign employer's organizational structure, the duties of a beneficiary's foreign subordinates, the 
presence of foreign employees to relieve a beneficiary from performing operational duties, the nature 
of the foreign business, and any other factors that will contribute to understanding a beneficiary's 
actual duties and role abroad. Therefore, the evidence and documentation requested by the Director 
with respect the foreign employer's organizational chart and the Beneficiary's subordinates was 
reasonable and probative to the Petitioner demonstrating his managerial or executive capacity 
abroad. 
In response, the Petitioner provided a foreign organizational chart reflecting that the Beneficiary 
reported to the general manager of the foreign employer. The chart also indicated that the 
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Matter of 0-S-
Beneficiary oversees in "Australia, U.A.E., UK, South Africa, USA, 
Netherlands," "International Sales" including three employees identified only as 
and "Domestic Sales" consisting of two employees identified only by name. 
[and] the 
and 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A) 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." Id. 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. 8 C.F.R. § 
214.2(1)( 1 )(ii)(B)(J). 
The Petitioner has not submitted sufficient evidence to establish that the Beneficiary oversees 
managerial or professional subordinates abroad as necessary to qualify him as a personnel manager. 
As discussed, the Director requested that the Petitioner submit a comprehensive organizational chart 
including the names and titles of the Beneficiary's subordinates along with their duties, educations, 
and salaries. However, the Petitioner did not submit this evidence to substantiate that the 
Beneficiary oversees subordinate managers and/or professionals. In fact, the submitted 
organizational chart includes no tiers of subordinates to establish that the Beneficiary manages 
subordinate supervisors, and the Petitioner has not submitted any evidence specific to the educations 
required for the positions subordinate to the Beneficiary or the bachelor's degrees, if any, held by his 
subordinates.2 However, the Petitioner has submitted little evidence to substantiate the Beneficiary's 
place in the foreign organizational structure or his subordinates abroad. Therefore, the Petitioner has 
not established that the Beneficiary acts as a personnel manager abroad. 
In the alternative, the Petitioner has not demonstrated that the Beneficiary acts as a function manager 
abroad. 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 IO I ( 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, the function; (4) the beneficiary 
will act at a senior level within the organizational hierarchy or with respect to the function managed ; 
2 To detennine 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 IO I (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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and (5) the beneficiary will exercise discretion over the function's day-to-day operations." Matter of 
G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
We note that the Petitioner does not expressly assert that the Beneficiary is employed as a function 
manager abroad; regardless, the submitted evidence does not sufficiently demonstrate that he is 
employed as a function manager. First, the Petitioner does not clearly describe the function the 
Beneficiary manages nor does not explain why his function is essential to the organization. In 
addition, as previously discussed, the Petitioner submitted a vague foreign duty description for the 
Beneficiary which includes non-qualifying operational duties, and it does not quantify the amount of 
time he devotes to managerial duties as opposed to non-qualifying tasks. As such, even if the 
Petitioner had clearly described and documented the Beneficiary's function, it also did not establish 
that the Beneficiary is primarily engaged in managing an essential function rather than performing it. 
Therefore, the Petitioner has not established that the Beneficiary qualifies as a function manager 
abroad. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary is employed in a 
managerial capacity abroad. 
III. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The next issue we will address is whether the Petitioner established that the Beneficiary would be 
employed in a managerial capacity in the United States within one year of an approval of the 
petition. The Petitioner does not claim that the Beneficiary would be employed in an executive 
capacity in the United States; as such, we will only analyze whether he would be employed in a 
managerial capacity. In addition, because of the dispositive effect of the above finding of 
ineligibility; namely, our affirmation of the Director's conclusion with respect to the Beneficiary's 
asserted foreign managerial capacity, we will only briefly address the remaining issue pertaining to 
his proposed employment in the United States. 
Upon review, we find that the Beneficiary's U.S. duty description is also overly vague as it does not 
effectively convey his day-to-day managerial duties within one year. The Beneficiary's job 
description includes several general duties that could apply to any manager acting in any business or 
industry; such duties do not provide insight into the actual nature of his role. The Petitioner 
provided insufficient specifics related to how the Beneficiary's day-to-day duties fit specifically 
within the company's first year business plans. For instance, the Petitioner provides few examples 
of the actions the Beneficiary would take during its first year of operation to assure that the business 
develops as necessary to support him in a managerial capacity within one year. 
For instance, the Petitioner indicates that the Beneficiary would be tasked with setting up a local 
management team, finding and recruiting suitable candidates, starting advertising campaigns, 
creating local pricing, shipping, and freight cost plans, and developing a stable customer base 
relationship. However, the Petitioner submits little detail on the local management team the 
Beneficiary would establish, advertising campaigns he would launch, pricing, shipping, and freight 
cost plans he would establish, or customers he would target. Again, specifics are clearly an 
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Matter of 0-S-
important indication of whether a beneficiary's duties are primarily managerial in nature, otherwise 
meeting the definitions would simply be a matter of reiterating the regulations. 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). 
In the case of a new office petition, we also review the petitioner's business and hiring plans and 
evidence that the business will grow sufficiently to support a beneficiary in the intended managerial 
capacity. A petitioner has the burden to establish that it would realistically develop to the point 
where it would require the beneficiary to perform duties that are primarily managerial in nature 
within one year of the petition's approval. Accordingly, we consider the totality of the evidence in 
analyzing whether the proposed manager position is plausible based on a petitioner's anticipated 
staffing levels and stage of development within a one-year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
In a support letter submitted with the petition, the Petitioner stated that it intended "to hire ... at least 
ten employees for our U.S. office within the next year, including one electrician/mechanic and [sic] 
service our production machinery, six to eight machine operators, forklift operator and warehouse 
clerk, [and] sales assistant." Again, similar to the Beneficiary's foreign role, the Petitioner submitted 
no organizational chart and no proposed duties, education levels, or salaries for these proposed 
employees, as requested by the Director. Without this evidence, the Petitioner has not demonstrated 
that the Beneficiary would oversee managerial and/or professional subordinates within one year. In 
fact, the asserted titles of its first year employees all appear to be operational level employees, not 
the required subordinate managers and/or professionals required to qualify the Beneficiary. 
In addition, beyond vaguely stating it would hire the aforementioned employees during the first year, 
it did not clarify when during the first year it would hire them or how it would support their salaries 
within one year. The Petitioner also provided a vague business plan that does not sufficiently 
demonstrate it would support the Beneficiary in a managerial capacity within one year. For instance, 
the Petitioner stated that it would invest over $2 million in the new venture during the first year, but 
it provided little indication as to how it would spend this investment to successfully launch the 
business during first year and it submitted little supporting evidence to substantiate this investment. 
For the above stated reasons, the Petitioner did not establish that the Beneficiary would act in a 
managerial capacity within the first year. 
III. CONCLUSION 
The appeal must be dismissed because the Petitioner has not established that Beneficiary is 
employed in a managerial capacity abroad or that he would be employed in a managerial capacity in 
the United States within one year. 
ORDER: The appeal is dismissed. 
Cite as Matter of O-S-, ID# 1982084 (AAO Jan. 7, 2019) 
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