dismissed L-1A Case: Marketing And Cctv Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-C- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB.l0,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner intends to provide marketing and CCTV camera installation and surveillance services 
and seeks to employ the Beneficiary as the general manager of its new onice under the L-lA 
nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the 
Act) section 101(a)(l5)(L), 8 U.S.C. § 110l(a)(15)(L). TheL-IA classification allows a corporation 
or other legal entity (including its affiliate or subsidiary) to transfer a qualifYing foreign employee to the 
United States to work temporarily in a managerial or executive capacity. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
evidence of record did not establish tha~ the Beneficiary would be employed in a managerial or 
executive capacity within 1 year of approval of the petition.' 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
states that it established by a preponderance of the evidence that the Beneficiary's duties will be 
primarily managerial in nature. The Petitioner asserts that the Director did not fully consider the 
Beneficiary's proposed position description or those provided for the subordinate managers and 
professionals he will supervise. 
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 mapagerial or executive capacity, or in a specialized knowledge 
capacity, for 1 continuous year within 3 years preceding the Beneficiary's application for admission 
into the United States. Section 10l(a)(15)(L) of the Act. In addition, the Beneficiary must seek to 
enter the United States temporarily to continue rendering his or her services to the same employer or 
a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge capacity. !d. 
1 
The Petitioner does not claim that the Beneficiary would be been employed in an executive capacity. Therefore, we 
restrict our analysis to whether the Beneficiary would be employed in a managerial capacity. 
Matter of H-C- Inc. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(1)(1 )(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 qualities 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. 
The regulation at 8 C.F.R. § 214.2(1)(3)(v) further provides 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 in the United States, 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 involves executive or managerial 
authority over the new operation; and 
(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: 
(1) The proposed nature ofthe office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of 
the foreign entity to remunerate the beneficiary and to commence 
doing business in the United States; and 
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Matter of H-C- Inc. 
(3) The organizational structure of the foreign entity. 
Section 101(a)(44)(A) of the 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 supervise"d, 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. 
Further, "[a] first-line supervisor is not considered to be acting in a managerial capacity merely by 
virtue ofthe supervisor's supervisory duties unless the employees supervised are professional." ld. 
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. 
II. 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 within 1 year. The Director determined that the Petitioner 
provided a vague description of the Beneficiary's proposed duties that did not sufficiently establish 
what he would do on a day-to-day basis. In addition, the Director found that the record did not 
establish that the Beneficiary would supervise a subordinate staff of professionals, supervisors, or 
managers within 1 year. 
On appeal, the Petitioner asserts that the Director did not consider the Beneficiary's job description 
in its entirety or the duties to be performed by the Beneficiary's proposed subordinates. The 
Petitioner asserts that the new office will have a tiered management structure, the Beneficiary will 
supervise two subordinate supervisors, and the subordinate employees will relieve him from 
performing non-managerial, operational duties of the company within I year. 
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Matter of H-C- Inc. 
Upon review of the petition and the evidence of record, including the Petitioner's brief in support of 
the appeal, the Petitioner has not established that the Beneficiary would be employed in a managerial 
capacity within 1 year of the approval of the new office petition or that the new office would support 
a managerial position within 1 year. 
The Petitioner was established in 2014 as a subsidiary of the Beneficiary's foreign employer in India 
and states that it sells, install and monitor CCTV systems and related equipment, as well as provide 
consultation services in the areas of digital advertising, branding and marketing. When a new office 
is established and commences operations, the regulations recognize that a designated manager or 
executive responsible for setting up operations will be engaged in a variety of activities not normally 
performed by employees at the executive or 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 a petitioner to disclose the 
proposed nature, scope and organizational structure of the business and the size of the U:S. 
investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within 1 year of the approval of the 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 or executive who will primarily perform qualifying duties. 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The definitions of executive 
and managerial capacity have two parts. First, the Petitioner must show that the Beneficiary will 
perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). Second, the Petitioner must prove that the Beneficiary 
would be primarily engaged in managerial or executive duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees, within 1 year of the approval of the petition. 
See, e.g., Family Inc. v. USCJS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, Inc. v. INS, 
940 F.2d 1533. 
In a letter submitted in support of the petition, the Petitioner stated that the Beneficiary will perform 
the following duties in the position of general manager: · 
1. Planning Administration (1 0%): In accordance with the parent company's goals 
and in consultation with Founder & Chairman in India, [the Beneficiary] will 
plan, develop and establish the U.S. company's policies and procedures with 
respect to business development, sales goals, service contract requirements, and 
hiring and training of additional professional and administrative workers. 
Oversee preparation of an Annual Report summarizing progress on short and 
long-range plans. 
2. Strategy (15%): Plan short-term and long-term strategies and marketing position 
of local market, including design and prioritization the major action plans for the 
company. Review ongoing projects and proposed project plans or proposals to 
meet business goals. Evaluate rate of return. 
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Matter of H-C- Inc. 
3. Customer Establishment: (30%). Hire a Sales Manager and arrange client 
meetings with small-scale to large-scale businesses to promote and sell the 
company's advertising and CCTV services. Exercise decision-making authority 
for price negotiations, bid presentation, service contract proposals, and orders 
with customers. 
4. Hiring and Recruitment (20%): Review sales and operational results during 
current start-up period, and determine staffing requirements and logistical support 
necessary to grow the company's business in the new market. Oversee the 
selection of candidates and personnel, and supervise our team of marketing, sales, 
technical and administrative personnel to build our new office. Recruit additional 
skilled employees to ensure successful implementation of sales and marketing 
strategies for the U.S. market. 
5. Human Resources Management: (5%). Exercise authority with respect to the 
hiring and firing of [the Petitioner's] employees. This includes establishment and 
supervision of training program for technical personnel, including supervisor­
level individuals. Recruitment and contracting of company and stafT. Oversee 
and perform employee development and training. Develop employee policies, 
and oversee performance management and improvement system. 
6. Sales and Marketing: (1 0% ). Establish sales team. Manage advertising 
opportunities in various media and at local community meetings. Organize 
meetings as necessary. Oversee content, production and distribution of all 
marketing and publicity materials. 
7. Financial Management: (10%). Oversee preparation of monthly and annual 
budget. Maintain records and report to company owners regarding company 
finances. Provide vision regarding overall financial health of the company. 
Provide vision and leadership in long-range fiscal planning to ensure the · 
continuity and solvency of the company. Provide recommendations regarding 
effective utilization of long and short-term debt, including refinancing and 
purchasing/sales. 
In a response to a request for evidence (RFE), the Petitioner pmvided a letter from the foreign entity 
in which it stated that the Beneficiary will be "responsible for oversight of the entire U.S. operation 
and the business strategy of the U.S. entity," including responsibility for leading the U.S. operations, 
"organizing and managing all aspects of [the Petitioner's] U.S. advertising and CCTV services," and 
managing the U.S. workforce and budget, including authority and responsibility with respect to all 
personnel actions. The foreign entity emphasized that the Beneficiary would "not merely be a 
s1.1pervisor" because the company's owners will rely on him for "planning, developing, and 
establishing the U.S. company's policies and procedures with respect to business development 
strategy, customer establishment, sales and marketing, financial management, and hiring and 
training of managerial, supervisory, professional, and administrative staff." 
While we find that these duties indicate that the Beneficiary's "proposed employment involves 
executive or managerial authority over the new operation" as required by 8 C.F.R. 
§ 214.2(1)(3)(v)(B), the managerial nature of several of the proposed responsibilities is contingent 
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Matter of H-C- Inc. 
upon the hiring of subordinate staff to relieve the Beneficiary from performing the day-to-day 
operations ofthe Petitioner's two lines of business. For example, the Petitioner states that "customer 
establishment" and "sales and marketing" responsibilities will require 40 percent of the 
Beneficiary's time, and will include hiring a sales manager and establishing a sales team, 
presumably to relieve him from performing non-qualifying duties associated with marketing and 
selling the company's products and services. However, at the same time, the Petitioner stated that 
the Beneficiary would be directly involved in non-managerial activities such as arranging client 
meetings to promote and sell services, while other duties, such as the Beneficiary's responsibility for 
reviewing "ongoing projects" and for exercising authority over bid presentations, service contract 
proposals and customer orders, are not clearly defined. 
For this reason, a position description alone is insufficient to establish that the Beneficiary's duties 
would be primarily in a managerial capacity, particularly in the case of a new office petition where 
much is dependent on factors such as a petitioner's business and hiring plans and evidence that the 
business will grow sufficiently to support a beneficiary in the intended managerial or executive 
capacity. As a new office, with no existing employees, the Petitioner is required to show how it will 
support a managerial position within 1 year by providing information regarding the proposed nature 
ofthe office, its anticipated scope, its organizational structure, and its financial goals. 
In its initial letter, the Petitioner stated that it intends to hire five stafi during the first year, including 
a fiber optics engineer who "must be a college graduate or have equivalent experience" and would 
be responsible for installing, maintaining and monitoring fiber optics and CCIV devices, and 
overseeing two CCIV surveillance coordinators, also to be hired during the first year. The 
Petitioner stated these employees will deploy CCIV networks at client locations and service existing 
CCIV systems. The Petitioner indicated that it will hire a sales manager with marketing experience 
to "research and develop new clients for advertisements," to handle all sales inquiries, and to finalize 
advertisement deals as well as CCIV surveillance contracts and inquiries. Finally, the Petitioner 
indicated that it would hire an office clerk to assist the Beneficiary by performing all administrative, 
clerical, data entry, bookkeeping, and client recordkeeping work. 
The Petitioner also submitted its business plan, in which it stated that it would employ six employees 
during the first year, and described its staffing plan as follows: 
The staff will likely consist of 2-3 CCIV surveillance coordinators overseeing the 
security services for our customers, a sales manager, a control room supervisor and an 
office clerk or data entry clerk, a fiber optic engineer for all technical works needed. 
We also intend to use an expert copy writer and SEO content provider to drive online 
traffic to our website. 
The business plan also included a chart listing the prospective employees as a general manager, sales 
manager, fiber optic engineer, surveillance coordinator, and office clerk. The Petitioner stated that it 
anticipates gross income of $150,000 per year with operating expenses of $120,000, and more than 
20% growth each year. The business plan projected employee wage expenses of $75,000 annually; 
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Matter of H-C-lnc. 
however, the only employee wage information provided was for the Beneficiary, who was offered a 
$50,000 annual salary. 
Finally, the Petitioner provided a proposed organizational chart depicting the Beneficiary as general 
manager overseeing a technical department with a fiber optic engineer and two surveillance 
coordinators, an administrative department with an office clerk, and a sales and marketing 
department with a sales manager. 
In the RFE, the Director acknowledged the initial evidence and determined that it was insufficient to 
establish that the Beneficiary will be primarily supervising a staff of professionals, managers or 
supervisors or that the subordinate staff will relieve the Beneficiary from performing non-qualifying 
duties. The Director also found that the Petitioner did not indicate the f<;>reign entity's financial 
ability to commence doing business and noted that the business plan did n~t provide a timetable of 
proposed actions for the first year of operations. , 
In response, the Petitioner revised its staffing plan for the first year of operations by adding a sales 
associate position and noting that it would staff only one surveillance coordinator position. The 
Petitioner also provided a breakdown of job duties, requirements, and expected pay rates for each 
position. The Petitioner stated that the sales manager position requires a bachelor's degree "or 
equivalent" in sales/marketing/business, the fiber optic engineer position requires a bachelor's 
degree or equivalent in computer science or electrical engineering, and the office clerk position 
requires a bachelor's degree in commerce or an associate's degree plus 1 to 2 years' experience. 
Based on the stated pay rates, and assuming that the Petitioner expects to employ the proposed staff 
on a full-time basis, its annual salary expenses for these employees would total $217,370, not 
including payroll taxes or the Beneficiary's $50,000 salary. 
The Petitioner also provided slightly revised financial projections, indicating that it anticipated 
$150,000 sales in the 2015-2016 year and $175,000 in the 2016-2017 year. In this version of the 
business plan, the Petitioner indicated that it had budgeted $98,000 to pay employee wages. 
Finally, in response to the Director's inquiry regarding the size of the investment and the ability to 
pay the Beneficiary's salary and commence operations in the United States, the foreign entity stated 
in its letter that the company had received approximately $50,000 from its two shareholders to date 
and had used this money to cover office rent, accounting services, taxes and legal expense, with 
$41,280 remaining in the bank at the time it responded to the RFE. The foreign entity stated that it 
and its partner would infuse additional capital into the Petitioner so that the company can hire staff 
and begin U.S. operations. It stated that the Beneficiary will be paid through the Indian company 
"until U.S. business operations and payroll are approved and established and sufficiently funded." 
The Petitioner submitted a statement from the foreign entity's bank indicating that it had the 
equivalent of $15,921.39 in its account as of August 2015, and its latest tax return showing Rs. 
1,093,463 (approximately $16,000) in gross annual income. 
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Matter of H-C- Inc. 
Here, the Petitioner asserts that the Beneficiary will be employed in a managerial capacity based on 
his responsibility for overseeing the day-to-day operations of the new office as a whole, his authority 
to hire and fire staff, and his oversight of a tiered management structure in which he will supervise 
two subordinates who will occupy supervisory and professional position. While we do not question 
the Beneficiary's authority over the Petitioner's day-to-day operations or his authority to hire, fire 
and supervise subordinate personnel, the totality of the evidence submitted does not establish how 
the Petitioner will carry out its projected hiring plans or how the Beneficiary would be relieved from 
non-qualifying duties associated with two lines of business by the end of the first year of operations. 
As noted, the Petitioner indicated· in both submitted business plans that it anticipates gross annual 
income of $150,000 in its first full year of operations and $175,000 in its second year. The 
Petitioner initially stated that it would pay its five employees a total of $75,000 per year and then, 
without explanation, increased this amount to $98,000 in its revised business plan. At the same time, 
the Petitioner provided salary figures for each of its proposed employees which indicated that it 
intends to pay them a total of $217,370, an amount significantly higher than its projected gross 
income. The Petitioner has not resolved these inconsistencies with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
J 
In addition, the Petitioner has not provided its projected start-up costs or sufficient detail regarding 
any additional financial contributions it expects to receive from its owners. The foreign entity states 
that it will initially pay the Beneficiary's $50,000 salary and provide further influxes of cash, but its 
gross income in the previous year was significantly lower than the Beneficiary's salary and its bank 
account balance does not show that it has the ability to transfer a significant amount to the U.S. 
entity. The Petitioner provided evidence of a $20,000 initial wire transfer from its minority owner, 
but the record does not include evidence that he is committed to provide further funds or that he has 
additional funds to invest. The evidence as a whole does not support the Petitioner's claim that it 
would be able to hire five employees on a full-time basis at the stated salaries and the unresolved 
inconsistencies undermine the probative value of the submitted hiring plans. As a result, we cannot 
determine to what extent the Beneficiary would be relieved from performing non-qualifying duties 
related to the company's day-to-day technical, sales, and administrative operations. 
Further, we note that the Petitioner has consistently stated that it intends to operate two lines of 
business, one involving the sale, installation and monitoring of CCTV and other surveillance 
equipment, and one involving digital marketing, branding and advertising consulting services. The 
Petitioner stated that the sales manager's duties will include developing plans to acquire clients for 
its advertising and marketing services business, but it has not stated that it will hire any employees to 
actually provide these consulting services to clients during its first 2 years. Therefore, we cannot 
determine to what extent the Beneficiary would be relieved of operational tasks associated with this 
· aspect of its business, including directly providing services to clients. 
I 
We will nevertheless address the Petitioner's claim that the Beneficiary will supervise two 
subordinate employees whose positions will be supervisory and professional in nature. The statutory 
definition of "managerial capacity" allows for both "personnel managers" and "function managers." 
See sections 101(a)(44)(A)(i) and (ii) of the Act. The Petitioner claims that the Beneficiary will act 
8 
Matter of H-C- Inc. 
as a personnel manager and has not claimed that he will be a function manager. Personnel managers 
are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. The statute plainly states that a "first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the. 
employees supervised are professional." 2 Section 10I(a)(44)(A) of the Act; 8 C.F.R. 
§ 214.2(1)(1 )(ii)(B)( 4). If a petitioner claims that a beneficiary directly supervises other employees, 
those subordinate employees must be supervisory, professional, or managerial, and the beneficiary 
must have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. Sections 101(a)(44)(A)(ii)-(iii) ofthe Act; 8 C.F.R. §§ 214.2(1)(1)(ii)(B)(2)-(3). 
The Petitioner indicates that both the fiber optic engineer and sales manager will occupy supervisory 
positions and that both employees hired will also qualify as professionals. At the time of filing, the 
Petitioner indicated that only the fiber optic engineer would require a bachelor's degree or its 
equivalent and would have a subordinate staff within 1 year. The Petitioner mentioned the 
bachelor's degree requirement for the sales manager and added a subordinate sales and marketing 
associate position in response to the RFE, after the Director determined that it did not appear that the 
employee in this position would be a professional or aCting as a supervisor within 1 year. The 
Petitioner did not provide an explanation for the changes to its hiring plan. For this reason, we find 
it more likely than not that only the fiber optic engineer would qualify as a professional or 
supervisory position. 
Further, as discussed, the Petitioner has not established that it would have the financial ability to 
actually carry out its projected hiring plans for the first year. Therefore, if it does hire the fiber 
optics engineer, it has not shown that it can pay the stated salary of $63,440 to this employee and 
still employ the other proposed staff. Due to the unresolved deficiencies in the record with respect to 
the hiring plans, we cannot conclude that the Beneficiary w0uld primarily supervise subordinate 
professional and subordinate staff or that the staff hired would relieve the Beneficiary from non­
qualifying duties associated with two lines of business. 
Here, while we do not doubt that the Beneficiary would have the appropriate level of authority and 
would allocate some of his time to qualifying duties, the record does not support a finding that he 
would be primarily focused on qualifying managerial duties or that he would be sufficiently relieved 
from involvement in the day-to-day operations of the company within 1 year. The Petitioner's 
projected hiring plans, organizational structure and payroll expenses do not support a finding that the 
company will employ sufficient staff to perform the day-to-day, non-qualifying duties associated 
with the Petitioner's business within 1 year. Accordingly, the Petitioner has not established that the 
Beneficiary would be employed in a managerial capacity. 
2 To detennine whether the 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. C.Y 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a United States baccalaureate degree or its foreign equivalent 
is the minimum requirement for entry into the occupation"). Section IOI(a)(32) of the Act, 8 U.S.C. § I IOI(a)(32), 
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." 
9 
Matter of H-C- Inc. 
III. CONCLUSION 
lri visa petition proceedings, the burden of proving eligibility for the benefit sought remains with the 
petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-C- Inc., ID# 170811 (AAO Feb. 10, 2017) 
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