dismissed L-1A Case: Medical Equipment

U.S. Citizenship 
and Immigration 
Services 
MATTER OF .1-M·E- CO .• INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 4, 2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a seller and distributor of medical equipment, seeks to temporarily employ the 
Beneficiary as president of its new office 1 under. the L-IA 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-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 Vermont Service Center denied the petition on multiple grounds. The Director 
determined that the Petitioner did not establish, as required, that: I) it had sufficient premises to 
launch the new business, 2) the Beneficiary had been employed abroad for one of the previous three 
years prior to filing the petition, 3) the Beneficiary was employed abroad in a managerial or 
executive capacity, and 4) the Beneficiary would be employed in a managerial or executive capacity 
in the United States within one year of the approval of the petition. 
On appeal, the Petitioner assens that the Director abused his discretion and ignored submitted 
evidence that establishes the Beneficiary's eligibility. 
Upon de nol'o review, the appeal will be dismissed as the Petitioner has not demonstrated that it 
would employ the Beneficiary in a managerial or executive capacity within one year of the petition's 
approval or that the Beneficiary meets the foreign employment requirements. We will, however, 
withdraw the Director's finding with respect to the Petitioner having sufficient physical premises to 
launch its business 2 
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 \vithin the date of approval of the petition to support an executive or managerial position. 
1 We find that the Petitioner has submitted adequate evidence to establish that it has more likely than not acquired 
sufficient physical premises to launch its business. The evidence submitted on appeal supports the Petitioner's claim that 
a lease was electronically signed prior to the petition and, at minimum, sufficient to house the Beneficiary and other new 
employees as necessary to begin operations. 
Matter of.J-ki-E- Co .. f11c. 
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. !d. 
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. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
We will first analyze whether the Petitioner established that it will employ the Beneficiary in a 
managerial or executive capacity within one year of the petition's approval. The Petitioner does not 
claim that the Beneficiary would be employed in an executive capacity. Therefore, we restrict our 
analysis to whether the Beneficiary would be employed 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 6f 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 
IOI(a)(44)(A) ofthe Act. 
In order to determine whether the Petitioner established that its new office will support a managerial 
position within one year. we will review the Beneficiary's proposed job duties, along with the 
Petitioner's business and hiring plai1s and evidence that the business will grow sufficiently to support 
the Beneficiary in the intended managerial capacity. The totality of the evidence must be considered 
in analyzing whether the proposed managerial position is plausible, considering a petitioner's 
anticipated starting levels and stage of development within a one-year period. See 8 C.F.R. 
§ 214.2(1)(3)(v)(C). 
A. Duties 
The Petitioner stated that it was established in the United States to "introduce, sell and distribute 
various high quality sets of medical equipment and instrument[s]" in the United States. The 
Petitioner indicated that the Beneficiary would perform the following duties as its president: 
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MaUer o/.1-M-E- Co .. Inc. 
• Planning, developing, and implementing strategies for generating resources and 
revenues for the company; 
• Establishing and approving company's rules, policies, operational procedures and 
standards: 
• Directing company operations to ensure production efticiency, quality products 
and services, and cost-effective management of resources; 
• Planning and manages sales and marketing operation budgets; 
• Adjusting marketing strategies to meet changing market and competitive 
conditions; 
• Evaluating the performance of her subordinate professionals for compliance with 
contributions in attaining objectives; directs entire company's HR matters; 
• Overseeing and deciding company's annual budgets and financial goals; 
• Reviewing and analyzing sales and performance against programs, quotes and 
plans to determine effectiveness; 
• Establishing and carrying out export sales goals, policies, and procedures to 
ensure the realization of export sales objectives. 
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 her 
role. The Petitioner provided tew 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 did not 
specify the actions the 13encficiary will take during its first year of operation to assure that the 
business develops as necessary to support her in a managerial capacity within one year. In fact, the 
Beneficiary's duty description includes no references to the company's intended business, the sale of 
medical devices and equipment. The Petitioner also submits few examples of strategies that the 
Beneficiary will implement; rules, policies, operational procedures and standards she will establish; 
sales and marketing budgets she will set or adjust; budgets or financial goals she will implement; or 
export goals and policies she will put in place .. The Petitioner also states that the Beneficiary will 
direct operations that are related to "production efficiency," but does not m1iculate the tasks that 
make up this general responsibility. Specifics arc clearly an important indication of whether a 
beneficiary's duties are primarily executive or 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), ajj'd, 905 F.2d 41 (2d. Cir. 1990). 
The fact that the Beneficiary would manage the business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial capacity within the meaning of section 
10l(a)(44) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" managerial in nature. Section I 0 l (A)( 44)(A) of the Act. Even though the 
Beneficiary would exercise· discretion over the Petitioner's day-to-day operations and possess the 
requisite level of authority with respect to discretionary decision-making, these elements are not 
sufficient to establish that the actual duties the Beneficiary would perform within one year of the 
petition's approval would be primarily managerial in nature. The actual duties themselves reveal the 
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Moller of.J-M-E- Co .. Inc. 
true nature of the employment. !d. Here, the Petitioner provided a vague job description that does 
not adequately convey the Beneficiary's actual proposed day-to-day tasks or establish that she would 
devote her time primarily to managerial duties within one year. 
B. Business Plan and Projected Staffing 
In the case of a new otlice petition, we review the 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. 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 or 
executive in nature within one year of the petition's approval. Accordingly, we consider the totality 
of the evidence in analyzing whether the proposed managerial or executive 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. S 214.2(1)(3)(v)(C). 
The Petitioner submitted a proposed organizational chart indicating that the Beneficiary supervises a 
vice president. The chart further ret1ects the Petitioner's plans to hire a sales manager and an oflice 
manager - both subordinate to the vice president. The chart also indicated that the sales manager 
would supervise sales associates and that the office manager would oversee an import-export sales 
assistant. an office assistant. and a warehouse employee. 
The Petitioner has not submitted sufficient detail regarding its business plans, information that is 
critical to assessing whether it will likely progress beyond the initial phase of development by the 
end of its first year of operation. The Petitioner provided a series of vague action plans which could 
apply to any business in any market. For .instance, it states that it plans to "create a high level 
American style website," utilize social media, fully understand the industry, "establish a strong 
attractive performance-reward system to solicit local professionals," and "participate in local and 
nationwide medical industry product exhibitions." The Petitioner also refers to "big customers" it 
has secured, including large medical centers in the area; however, it does not substantiate its 
relationships with these entities. Further, the Petitioner points to the "market," its "customers," and 
'·goods and services," but it docs not describe these in detail. In fact, the business plan states that the 
Petitioner has little idea of what to expect from the U.S. market, noting that its main objective is to 
"better explore, familiarize, and understand the U.S. market." As such, the Petitioner did not 
adequately describe its business plans or explain how it will develop sufficiently to support the 
Beneficiary in a managerial capacity within one year of the ~etition's approval. 
Likewise, the Petitioner provided insufticient and inconsistent detail regarding its hiring plans. First, 
the Petitioner submitted an organizational chart indicating that it employs a vice president 
subordinate to the Beneficiary. In addition, the business plan indicates that the Petitioner formed a 
sales team, including a sales manager and representatives. However, the Petitioner did not submit 
supporting evidence to indicate that it already has employees who are subordinate to the Beneficiary. 
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Maller of.!- M-E- Co .. Inc. 
On appeal, the Petitioner emphasizes that it is not required to have employees to qualify as a new 
ofticc. We agree; however, the Petitioner has not substantiated its assertion of already existing 
employees or set forth definitive hiring plans, as necessary to demonstrate that it will likely support 
the Beneficiary in a managerial capacity within one year. In fact, the Petitioner submitted another 
organizational chart outside of the business plan indicating that it would hire a vice· president, a sales 
manager. an office manager. sales associates, an import-export sales assistant, an office assistant, 
and a warehouse employee. However, the submitted business plan indicates that the Petitioner 
projected hiring a vice president and general manager, an office secretary, one to two employees in 
an import and purchase department, three to four "sales people," one to two engineers, and one to 
two translators/interpreters. Further, although the Petitioner indicated that it "will hire employees at 
different times in the first year." it did not specifically define when it plans to hire subordinates. The 
Petitioner must resolve discrepancies and ambiguities in the record with independent, objective 
evidence pointing to where the truth lies. Maller ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Furthermore, the duties provided for the Beneficiary's proposed subordinates are vague and do not 
convey their day-to-day tasks in the context of the company's first year of development. The 
Petitioner provided a list of non-specific duties for the vice president that largely overlap with the 
Beneficiary's proposed duties. The Petitioner also vaguely stated that the office manager would be 
tasked with "organizing and coordinating oflice operations and procedures," "design[ing] and 
implement[ing] oflice policies," and "establish[ing] standards and procedures"; it did not, however, 
detail the projected operations, procedures, policies, standards, or procedures. Likewise, the 
Petitioner indicated that the sales manager would be "responsible for the development and 
performing of all sales events and activities, execute plans and strategies to expand the customer 
base," and "communicate to customers about products and sell products." Again, these duties are 
vague and do not demonstrate the projected positions that would be subordinate to the Beneficiary. 
We also note that the duty descriptions for the Beneficiary's proposed subordinates, and in turn their 
subordinates, make no reference to actions they will take during the first year to launch the business 
and barely discuss the Petitioner's projected industry and operations. 
Lastly, the Petitioner regularly emphasizes the investment made by the foreign employer in the 
Petitioner, indicating that this amounts to $199,078 as of the date of the petition. However, the 
Petitioner did not outline in detail the company's start-up costs and initial operating expenses, nor 
did it articulate how this investment will be used to launch the business. In sum, the Petitioner 
submitted little evidence to demonstrate that it will grow su!Ticiently during its first year of operation 
to support the Beneficiary in a managerial capacity. 
In light of the above, we find that the Petitioner has not provided sufticient probative evidence 
establishing that the Beneficiary will be relieved from performing non-managerial duties within one 
year of approval of this petition. 
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Matter of.!- M-E- Co .. Inc. 
Ill. FOREIGN EMPLOYMENT 
The Director also detennined that the Petitioner did not establish that the Beneficiary was employed in a 
qualifying managerial or executive capacity abroad or that she was employed abroad for the required 
one year during the three years prior to filing this petition. 
In denying the petition, the Director questioned the Beneficiary's continuous employment abroad in a 
managerial or executive capacity, pointing to her presence in the United States for 189 days during the 
three years prior to the date of the petition. The Director also detem1ined that the Beneliciary' s job 
description and the t<1reign entity's organizational chart were insufficient. Specilically, the Director 
stated that the organizational chart was vague and did not describe how the Beneficiary was relieved 
!rom primarily performing operational duties during her employment abroad. Likewise, the Director 
determined that the job description was also vague and did not adequately convey an understanding of 
the Beneficiary's managerial duties. 
On appeal, the Petitioner asserts that the Beneficiary was in the United States for 189 days during the 
three years preceding the filing of the petition because she was attending meetings and expositions and 
taking other actions to set up the proposed new business in the United States. The Petitioner contends 
that the Beneficiary qualifies as a function manager and that she does not perform operational-level 
duties. 
We concur with the Director's decision that the Petitioner has not established that the Bencticiary was 
employed abroad in a managerial or executive capacity for one out of the three years prior to the 
petition. Although we acknowledge the Petitioner's assertion that the Beneficiary was employed as a 
foreign employer general manager since 2008, we conclude that the Petitioner provided vague duties 
that lack detail regarding her activities and accomplishments with the foreign employer over the last 
nine years. The Petitioner did not elaborate on its claim that the Beneficiary implemented "strategic 
marketing plans and sales plans," managed "sales and marketing budgets," oversaw "advertising and 
promotion activities," and made "important decisions." Further, the Petitioner provided three vague 
emails specific to the Bcneliciary's foreign role that do not substantiate the claim that she perfom1ed 
numagcrial-levcl duties abroad for over nine years. 
For the reasons stated, the Petitioner has not established that the Beneliciary had one year of 
employment in a managerial or executive capacity with a qualifying entity abroad during the 
relevant three-year time period. 
IV. CONCLUSION 
The appeal will be dismissed because the record does not include sufficient evidence establishing 
that the Beneficiary would be employed in a managerial or executive capacity within one year of this 
petition's approval or that she was employed abroad in a managerial or executive capacity for one 
out of the three years preceding the tiling of the petition. 
6 
Ma/fer of.!- M-E- Co .. Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of.J-M-E- Co .. Inc., 10# 1149266 (AAO May 4, 20 18) 
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