dismissed L-1A Case: Medical Software

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 16, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a medical software company, seeks to continue the Beneficiary's temporary employment 
as its "Company Director/CEO" under the L-lA nonimmigrant classification for intracompany 
transferees. Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 8 U.S.C. § 1101(a)(l5)(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, determining that the Petitioner did 
not establish, as required, that the Beneficiary would be employed in a managerial or executive 
capacity under the extended petition. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erroneously denied 
the petition. The Petitioner contends that the Beneficiary will be employed in a managerial capacity 
and will primarily manage its essential functions. 1 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 10l(a)(l5)(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 or executive capacity. Id. 
1 Subsequent to filing the appeaL the Petitioner filed a new nonimmigrant petition. The new petition was approved and 
the Beneficiary was granted L-1 B classification authorizing him to work for the Petitioner in a specialized knowledge 
capacity. We issued a request for evidence (RFE) to confirm that the Petitioner wished to pursue the instant appeal. The 
Petitioner has confirmed its intent to pursue the appeal and submitted supplemental evidence, which we have incorporated 
into the record. 
Matter of S- Corp. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The sole issue addressed by the Director is whether the Petitioner established that it would employ the 
Beneficiary in a managerial capacity in the United States. 2 Specifically, the Petitioner claims that it 
will employ the Beneficiary as a function manager. 
"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 
10l(a)(44)(A) of the Act. 
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 10l(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 "(l) the function is 
a clearly defined activity; (2) the function is 'essential,' i.e., core to the organization; (3) the 
beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at 
a senior level within the organizational hierarchy or with respect to the function managed; and ( 5) the 
beneficiary will exercise discretion over the function's day-to-day operations." Matter of G- Inc., 
Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
When assessing the managerial or executive nature of an offered position, we examine a petitioner's 
description of the job's duties. See 8 C.F.R. § 214.2(1)(3)(ii) (requiring an L-1 petitioner to submit "a 
detailed description of the services to be performed"). Beyond the required description of the job 
duties, we examine the company's organizational structure, the duties of a beneficiary's subordinate 
employees, the presence of other personnel to relieve the beneficiary from performing operational 
duties, the nature of the business, and any other factors that will contribute to understanding the 
beneficiary's actual duties and role in a business. 
A. Job Duties 
Based on the 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 table decision). Second, the Petitioner must prove that the Beneficiary will 
primarily engaged in managerial duties, as opposed to ordinary operational activities alongside the 
company's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d at 1533. 
2 The Petitioner initially claimed that the Beneficiary would be employed in an executive capacity, but has not pursued 
that claim on appeal. 
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Matter of S- Corp. 
At the time of filing, the Petitioner described the Beneficiary's duties as CEO as follows: 
This position is fully responsible for the direction and corporate governance of the 
company. This includes directing, marketing strategy, product direction, client 
services, and customer retention strategy. He works to administer organizational 
activities, set business strategies, delegate tasks, review financials and sales reports, 
and recruit new managerial employees. As the leader of the company, he reports to 
board members or company stakeholders and strives to maintain professional and 
corporate customers, enforce ethical practices, meet fiscal targets and manage company 
budgets. 
The Director issued a request for evidence instructing the Petitioner to submit a detailed position 
description describing the specific tasks the Beneficiary would perform and the amount of time to be 
spent on each. In response, the Petitioner stated that his "typical executive duties" would be as follows: 
• Review and manage budget and cash flow - 1 7% 
• Sales and marketing - 7% 
• Product design and direction - 40% 
• IT service strategy- 12% 
• Corporate Management- 12% 
• Customer relations - 9% 
• New product development and customer advisory- 12% 
The Petitioner did not elaborate with respect to the specific duties the Beneficiary was expected to 
perform on a day-to-day business within these areas of responsibility. In the denial decision, the 
Director determined that the Petitioner did not meet its burden to provide a detailed description of the 
Beneficiary position, and noted that most of these broadly stated duties could not be classified as 
managerial or executive in nature based on the limited information provided. 
We agree with the Director's assessment of the position descriptions provided with the initial filing and 
in response to the RFE. Both descriptions broadly stated the Beneficiary's areas ofresponsibility without 
providing any meaningful insight into what he would primarily do on a day-to-day basis as the CEO and 
sole full-time employee of a medical software company offering multiple products in several targeted 
markets. Specifics are 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), 
aff'd, 905 F.2d 41 (2d. Cir. 1990). As discussed further below, the Petitioner claimed to have outsourced 
certain software development, firmware development, and accounting tasks, but did not show who, other 
than the Beneficiary, would be available to perform non-qualifying duties associated with sales, 
marketing, client support, customer relations, and day-to-day administrative and financial matters. 
The Petitioner now submits the following revised and expanded position description on appeal: 
1. Contract Negotiation/Oversight ( 40%) 
a. Directs and oversee contracts to buyers, purchasing officers, and related 
clientele involved in purchasing [the Petitioner's] software solutions .... 
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Matter of S- Corp. 
b. Performs final "sign-off'' on all multi-million dollar contracts for products and 
support. 
c. Performs final "sign-off'' on strategic Non-disclosure Agreements with 
companies engaged to work with [the Petitioner]. 
d. Develops and signs off on contractual agreements between [the Petitioner] and 
contractors. 
2. Management of Budget and Cash flow: (17%) 
a. Produces financial reports, directs investment activities, and develops strategies 
and plans for the long-term financial goals. 
b. Develops strategic alliances/contractual agreements to ensure [the company's] 
products and services can scale in the U.S. markets ... 
3. Technology Strategy Decisions: (12%) 
a. Determines the information technology goals and takes responsibility for 
oversight of technology systems to meet those goals. 
b. Oversees meetings with end customers and alliances such as Johns Hopkins and 
UPS to ensure [the Petitioner] aligns its technology goals with market trends 
4. Oversight of new products (12%): Ensures proper development of products 
designed to meet healthcare needs of U.S. market; ensures product/production are 
of the proper quality to address customer needs. 
5. Oversight of sales and marketing (7%): Direct organizations' direct and indirect 
sales teams. Sets sales goals, analyzes data, and develops training programs for 
organizations' sales representatives. 
6. Corporate Management (3%): Formulates internal policies, manages daily 
operations, and plan the use [ of] human resources and contractors. 
7. Liaison with Partner Executives (9%): Coordinates company goals with the Board 
of Directors/Group Investors; ensures proper communication with other critical 
players/Executives inside and outside the company. 
The Petitioner states that it has "centralized the management of its key functions" - including 
electronics, manufacturing and fabrication, software development and support, direct sales, and 
indirect sales - under the Beneficiary's management, and that this description demonstrates that he 
primarily performs "functional managerial duties." 
However, this newly submitted position description, while lengthier than those previously submitted, 
does not demonstrate with sufficient specificity what the Beneficiary actually does as part of his daily 
routine. In order to establish that the Beneficiary will be employed as a function manager, the 
Petitioner must establish that his actual duties are primarily managerial. 
First, we note that, while several of the areas of responsibility attributed to the Beneficiary on appeal 
resemble the overview of the position provided in response to the RFE, the Petitioner made certain 
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Matter of S- Corp. 
changes to the areas ofresponsibility without explanation. Whereas the Petitioner previously indicated 
that the Beneficiary spends 40% of his time on "product design and direction," the Petitioner now 
states that he allocates 40% of his time to "contract negotiation/oversight," and did not attempt to 
reconcile the two statements. Rather, it now simply states that he is not involved in any software 
design duties. The Petitioner also replaced the Beneficiary's "customer relations" duties with "liaison 
with partner executives" and removed "customer advisory" functions from the original description. 
Notably, these were all among the responsibilities that the Director observed were not clearly 
managerial in nature. Overall, these changes to the Beneficiary's time allocations and areas of 
responsibility account for approximately half of the Beneficiary's time. A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. 
See Matter of Izwnmi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
Regardless, the expanded description does not adequately detail how the Beneficiary primarily 
manages the company's essential functions. The Petitioner indicates that the Beneficiary spends 40% 
of his time on contract negotiation and oversight, but does not describe the specific tasks that would 
occupy this large portion of his time on a day-to-day basis. The Petitioner notes the Beneficiary's 
authority to sign sales contracts, agreements with contractors, and non-disclosure agreements, but the 
record does not support a finding that these are duties that he would perform with such regularity that 
they would require significantly more of his time than any other duty. The only other duty identified 
under this area of responsibility - "directs and oversees" contracts - is vague and does not provide 
insight into what specific activities would be involved. Further, the Petitioner did not define "contract 
oversight" as one of the essential functions managed by the Beneficiary. 
In fact, only three of the Beneficiary's responsibilities, requiring 31 % of his time, appear to directly 
relate to the technology and sales functions that he is claimed to primarily manage. The Petitioner's 
expanded description of these responsibilities also lacks detailed information regarding the specific 
tasks the Beneficiary performs to manage these functions. For example, the Petitioner states that his 
responsibility for "technology strategy decisions" includes determining information technology goals, 
taking responsibility for oversight of systems to meet those goals, and overseeing meetings with end 
customers to ensure that goals align with market trends. These statements are vague and do not 
specify, for example, what specific tasks are involved in "overseeing" a meeting with customers or 
overseeing technology systems. 
Similarly, the Beneficiary's oversight of sales and marketing is stated to include direction of "direct 
and indirect sales teams" and developing training programs for the company's sales representatives. 
However, the Petitioner does not claim that it had a direct sales team or sales representatives, nor does 
it have anyone to deliver the training programs the Beneficiary develops. Finally, while the Petitioner 
stated that the Beneficiary's responsibilities include "oversight of new products" it did not identify the 
actual tasks he performs to "ensure proper development of products" or to ensure that the products are 
"of the proper quality to address customer needs." Without these details, we cannot determine that his 
duties would be managerial in nature. 
Reciting a beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; 
the regulations require a detailed description of the beneficiary's daily job duties. The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros., 724 F. Supp. at 1108, aff'd, 
905 F .2d 41 (2d. Cir. 1990). Here, the Petitioner has not provided the necessary detail or an adequate 
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Matter of S- Corp. 
explanation of the Beneficiary's activities in the course of his daily routine in support of its claim that 
he primarily manages the company's "five essential functions." 
Further, as noted above, the Petitioner has not provided a consistent breakdown of how the Beneficiary 
would allocate his time. Absent a clear and credible breakdown of the time spent by the Beneficiary 
performing his duties, we cannot determine that such duties would be primarily managerial. The fact 
that the Beneficiary will manage the business as a whole does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial capacity within the meaning of section 
10l(a)(44)(A) of the Act. While the Beneficiary may exercise discretion over the Petitioner's day-to­
day operations and possess the requisite level of authority with respect to discretionary decision­
making, the position descriptions alone are insufficient to establish that his actual duties would be 
primarily managerial in nature. 
B. Staffing and Organizational Structure 
The Petitioner, which offers several medical software solutions, employed the Beneficiary as its sole 
payroll employee at the time of filing. The Petitioner explained that, although it previously had in­
house employees, it found that outsourcing its day-to-day work was more efficient as the company 
moved from offering customers a "one-size-fits-all" solution to developing vertical markets for its 
products. The Petitioner did not initially provide an organizational chart or identify its outsourced 
service providers. 
In the RFE, the Director requested: a detailed organizational chart and the names, job titles and job 
duties of all personnel; evidence of wages and payments made to employees and contractors; and 
copies of contracts for outsourced labor. 
In response, the Petitioner submitted an organizational chart reflecting that a team of contractors assists 
the Petitioner and related entities with software~1, hardrare, firmware and design. The 
Petitioner identified the contractors asl I L__J and I ~' It submitted letters 
from: (l)I I ofl I, who indicated that his company provides "engineering 
consulting that includes embedded programming, circuit design and associated technical advice"; (2) 
.___-.-__ _.I ofl I who stated that his company performs software development for 
the Petitioner; and (3) a CPA, who stated that his firm provides accounting and tax services. The 
Petitioner did not submit additional information regarding duties performed by these contractors, 
evidence of payments made to them, or copies of their contracts. In the denial decision, the Director 
found that the Petitioner did not sufficiently document its use of contractors or demonstrate that the 
Beneficiary had sufficient staff available to relieve him from significant involvement in the day-to­
day operations of the company. 
On appeal, the Petitioner claims that its legal counsel did not folly understand the company's business 
and staffing model, and now provides additional information and documentation related to the 
company's use of contractors. It states that it relies on outsourced companies to perform the day-to-day 
activities of the company's "essential functions" and that the Beneficiary primarily manages these 
functions. 
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Matter of S- Corp. 
The Petitioner states that the "electronics (firmware)" function is performed by I~------~ 
which develops electrical designs, la outs and develo s firmware for electrical components of the 
Petitioner's projects and products and which designs and builds electronic boards. 
The Petitioner reiterated that~---~performs its "software development and support" function, 
and explained that the "manufacturing and fabrication" function for the company's "endoscope 
cabinet" products is performed byl 11 1,1 ~ andl I 
The Petitioner also states that it outsources its indirect sales to three companies -I I 
and I I which it describes as "resellers." Finally, it states that its "direct .__ ______ __. 
sales" function would soon be filled by in-house employees, as it is in the process of hiring a "GI Lab 
Sales" employee and expects to hire a "Sterile Processing Sales" employee "in early 2019." 
As evidence of its use of the above-referenced contractors, the Petitioner submits: 
• One invoice for $680 froml I dated August 201 7 
• One invoice for $9014.25 from I ldated May 2018, subsequent to 
the filing of the P.etition 
• A quotation frottj I for "Scope Cabinet Contract Work," dated August 2018, subsequent 
to the filing of the petition 
• One invoice froml I for the purchase of an endoscope cabinet in October 201 7 
• Dozens of invoices from I I for design, development and testing work performed 
between July 2017 and August 2018, accompanied by detailed logs of tasks performed during 
this period 
• A printout of a "Purchases [Vendor Summary l'I replort for the same period indicating that the 
Petitioner purchased $196,000 in services from over a 13 month period. 
• A printout of a "~ales [Customer Summary]" report for the period July 2017 until August 2018, 
which identifies. land total sales of$116,455.80. 
• A =rintout of a "Sales [Customer Summary]" report for the same period which identifies 
I _ f and one sales transaction in the amount of $1309 in August 2017. 
• A printout of a "Sales [Customer Summary]" report for the same period which identifies 
I t and eight sales transactions totaling $2676. 
In addition, the supplemental evidence submitted in response to our RFE includes evidence that the 
Petitioner hired a full-time office manager in November 2018, as well as a few additional invoices. 
The Petitioner asserts that the newly submitted information and documentation establish that the 
Beneficiary "manages and oversees five (5) functions of [the Petitioner]," and that "his duties directly 
relate to his management of the five (5) functional areas of the business." The Petitioner acknowledges 
that staffing is a relevant consideration in determining a given beneficiary's employment in a managerial 
capacity, but emphasizes that it has established that the Beneficiary here has sufficient personnel to 
perform the software design, installation of hardware, manufacturing of components, and sales. 
The newly submitted evidence does not establish that the Beneficiary is primarily managing an 
essential function or functions for the Petitioner. First, as discussed, the newly submitted breakdown 
of the Beneficiary's duties indicates that he would spend less than one-third of his time on oversight 
of the company's technology, sales, and marketing activities, and describes an employee who is 
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Matter of S- Corp. 
responsible for the company as a whole, rather than primarily responsible for managing a clearly 
defined essential function or functions. The description does not clearly define the Beneficiary's 
duties as required by the regulations and remains insufficient to establish the nature of his actual day­
to-day work. 
The information provided on appeal provides a clearer picture of how the company's software and 
solutions are developed and produced without in-house staff However, the new evidence does not 
sufficiently demonstrate that all or most non-qualifying technology-related activities have been 
contracted out. The Director emphasized that the Petitioner did not submit copies of its contracts 
detailing the services to be performed by its contractors and this documentation is still not part of the 
record. Therefore, while the Petitioner has documented the extensive software and testing services 
performed by I I it has not adequately supported its claim that this contractor reviews and 
responds to customer support inquiries, supports customers' software support teams, or engages with 
the Petitioner's customers. This is significant because the Beneficiary initially stated that "customer 
advisory" and "customer relations" duties require 21 % of the Beneficiary's time. We cannot determine 
to what extent the Beneficiary is actually relieved from these customer support duties absent evidence 
showing that they have actually been assigned to contractors. 
The Petitioner states that the Beneficiary "oversees"! l's work, but the terms of the arrangement, 
and the specific nature of that oversight, are not sufficiently documented. As noted, the Petitioner 
initially indicated that the Beneficiary would spend 40% of his time on duties related to "product 
design and direction." We cannot overlook the fact that the record indicates that the Beneficiary was 
the primary architect of the Petitioner's software solutions and likely possesses technical knowledge 
not held by the contractor. Therefore, the Petitioner's claim that he is removed from performing any 
day-to-day technical duties requires additional explanation. Further, coordinating the work of the 
manufacturing, software, firmware, and other contractors involved in product development would 
necessarily require performance of operational and administrative tasks that have not been clearly 
assigned to anyone. For example, the quotation fro~ I stated that the Beneficiary would be 
responsible for submitting photos to a UL inspection company, obtaining quotes, and scheduling and 
contracting with a UL company for UL inspection. 
The record is similarly lacking evidence that the Beneficiary is relieved from invohrement in sales and 
marketing duties. The Petitioner describes its indirect sales team oti I, l I 
and I I as "resellers," but the submitted "sales summaries" appears to identify them 
as customers. Further, only~------~ was claimed to be responsible for any significant 
portion of the company's sales, and the Petitioner did not provide a copy of its agreement or contract 
with! Ito clarify the nature of the relationship. The evidence does not support the 
Petitioner's claim that it has been or would be primarily relying on these companies to achieve its 
sales, nor does the record show that the Petitioner has employed its own sales staff In the absence of 
such evidence, we cannot conclude that the Beneficiary is relieved from significant involvement in the 
company's sales and marketing activities. 
The Petitioner claims that it now employs a full-time office manager who purchases and maintains 
materials for inventory, organizes files, schedules appointments, "maintains customer satisfaction," 
fulfills and ships customer orders, liaises with suppliers and clients, manages "project goals," 
processes invoices and receivables, and performs "all administrative tasks." This employee was hired 
8 
Matter of S- Corp. 
nearly one year after the filing of this petition, and the Petitioner has not stated who performed the 
duties now assigned to this individual when the petition was filed. The Petitioner must establish that 
all eligibility requirements for the immigration benefit have been satisfied from the time of the filing 
and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). The record also reflects that the 
Petitioner had a second employeeJ I during the first eight months of 2017, but the Petitioner 
did not identify what types of duties this individual performed or explain who took over their duties 
after their departure. 
The Petitioner correctly observes that we must take into account the reasonable needs of the 
organization and that a company's size alone may not be the only factor in determining whether the 
Beneficiary is or would be employed in a managerial or executive capacity. See section 101(a)(44)(C) 
of the Act. However, it is appropriate to consider the size of the petitioning company in conjunction 
with other relevant factors, such as the absence of employees who would perform the non-managerial 
or non-executive operations of the company or a company. Family Inc. v. USCIS, 469 F.3d 1313 (9th 
Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The fact that a petitioner is small and relies on contractors to perform certain day-to-day duties does 
not prohibit a finding that it can support a managerial position. Further, performing non-qualifying 
tasks necessary to produce a product or service will not automatically disqualify a beneficiary as long 
as those tasks are only incidental to their primary duties. However, a petitioner still has the burden of 
establishing that a beneficiary will "primarily" perform managerial duties. See section 10l(a)(44) of 
the Act. Whether a beneficiary is a "function" manager turns in part on whether the Petitioner has 
sustained its burden of proving that their duties are "primarily" managerial. See Matter of Z-A-, Inc., 
Adopted Decision 2016-02 (AAO Apr. 14, 2016). 
Here, while the record establishes that the Beneficiary, as the Petitioner's ultimate owner and sole 
employees, has the appropriate level of authority over the company and its essential functions, the 
record does not sufficiently describe his actual duties and the proportion of those that are managerial 
in nature. Its descriptions of his duties contained inconsistencies and were not sufficiently detailed. 
Further, the record does not adequately document the availability of contractors to relieve the 
Beneficiary from involvement in certain non-managerial tasks necessary for the operation of the 
business, particularly administrative, sales, marketing, customer relations, and certain technical 
functions associated with the design of its software and solutions. For these reasons, the Petitioner 
has not established that it would employ the Beneficiary in a managerial capacity under the extended 
petition. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of S- Corp., ID# 2553328 (AAO July 16, 2019) 
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