dismissed L-1A Case: Metals And Minerals Trading

U.S. Citizenship 
and Immigration 
Services 
In Re: 20615272 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUN . 10, 2022 
The Petitioner, the U.S. office of a company engaged in metals and minerals trading and 
manufacturing, seeks to continue the Beneficiary's temporary employment as its general manager under 
the L-IA nonimmigrant classification for intracompany transferees. 1 Immigration and Nationality Act 
(the Act) section 101(a)(l5)(L), 8 U.S.C. § l 10l(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, concluding that the record did not 
establish, as required, that the Petitioner seeks to employ the Beneficiary in a primarily managerial or 
executive capacity. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
To establish eligibility for the L-lA nonimmigrant visa classification, 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. 
A petitioner seeking to extend an L-lA petition that involved a new office must submit a statement of 
the beneficiary's duties during the previous year and under the extended petition ; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
1 The Petitioner previously filed a "new office" petition on the Beneficiary 's behalf which was approved for the period 
from December 3, 2019, until December 2, 2020. A "new office" is an organization that has been doing business in the 
United States through a parent , branch, affiliate, or subsidiary for less than one year. 8 C.F .R. § 214.2(1)( I )(ii)(F) . The 
regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation one year within the date of approval of the 
petition to support an executive or managerial position . 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 8 C.F.R. 
§ 214.2(1)(14)(ii). 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner provided sufficient evidence to establish that 
the Beneficiary's position with the U.S. entity would be in a managerial or executive capacity. The 
Petitioner does not clearly and consistently state whether the proposed position qualifies as 
employment in a managerial capacity or in an executive capacity. Rather, the Petitioner provided 
ambiguous statements that did not clarify this critical point in any of its prior submissions. The 
Director determined that the Petitioner did not establish that it would employ the Beneficiary in a 
primarily managerial or executive capacity. We agree, as explained below. 
"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. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
Based on the statutory definitions of managerial and executive capacity, the Petitioner must first show 
that the Beneficiary will perform certain high-level responsibilities. See sections 10l(a)(44)(A) and 
(B) of the Act. The Petitioner must also demonstrate that the Beneficiary will be primarily engaged 
in managerial or executive duties, as opposed to ordinary operational activities alongside other 
employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). Further, the Petitioner 
must clearly describe the duties to be performed by the Beneficiary and indicate whether such duties 
are either in an executive or managerial capacity. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, we 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 101 (a)( 44 )( C) of the Act. 
As a threshold matter, we note that a petitioner claiming that a beneficiary will perform as a "hybrid" 
manager/executive will not meet its burden of proof unless it has demonstrated that the beneficiary 
will primarily engage in either managerial or executive capacity duties. See section 10l(a)(44)(A)-(B) 
of the Act. While in some instances there may be duties that could qualify as both managerial and 
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executive in nature, it is the petitioner's burden to establish that the beneficiary's duties meet each set 
of criteria as put forth in the statutory definition for either managerial or executive capacity. A petition 
may not be approved if the evidence of record does not establish that the beneficiary will be primarily 
employed in either a managerial or executive capacity. 
At the time of filing, the Petitioner indicated that the Beneficiary had one employee and was in the 
process of setting up its new office. It stated that while in the process of hiring employees, the 
Governor of California ordered its operations to shut down as a result of the COVID-19 pandemic. 
The Director issued a request for evidence (RFE), asking for further evidence and information about 
the Beneficiary's duties and the staffing of the U.S. entity. 
In response, the Petitioner submitted the following overview of the Beneficiary's duties: 
Company policy, goals, strategy, etc. (30%): 
[The Beneficiary] spends approximately 30% of his working time developing, 
establishing and updating the company's annual business policies, objectives, plans and 
strategies. He regularly convenes meetings of department managers to discuss new 
business issues and make needed adjustments of company policies, goals and 
strategies; represents the company in participating in major business meetings, 
conferences, and business shows in China and overseas; responsible for exchanging 
and sharing policy related developments and information of this industry with other 
major Chinese and foreign business partners. Report to Board of Shareholders and 
Supervisory Committee regularly to brief new issues on policy, goals, and strategies. 
Sales and market development (30%) 
[The Beneficiary] uses 30% of his working hours to initially set up and continuously 
supervise sales channels and marketing strategies for the company. Convey to the sales 
and marketing managers the policies and goals of the company's sales and marketing; 
follow up with the managers on the enforcement and accomplishments of the sales and 
marketing objectives and policies; give directions on how to solve any newly emerged 
issues and problems; daily in person over phone or via other communication means 
with the sales and marketing managers inquiring about the development of important 
contracts and provide guidance on promoting further the company products. Report to 
Board of Shareholders and Supervisory Committee regularly to brief new issues on 
sales and marketing situations. 
Finance (20%): 
[The Beneficiary] spends 20% of his working time on the company's financial 
advantages. First, he is responsible for formulating short-term and long-term trade and 
financial investment plans and goals; interview with the administrative manager or 
financial officer responsible for the company's financial management and review 
weekly the major financing reports of the company; making decisions for major 
financing strategies of the company such as general funds allocations and investment 
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channels establishment; provide guidance on how to accumulate investment funds and 
how to use the funds to generate more revenues. Report to Board of Shareholders and 
Supervisory Committee regularly to brief new issues on company financing issues. 
Personnel Management (20%): 
[The Beneficiary] uses 20% of his working time for a personnel management. 
Regularly meet with the administrative manager to check the overall performances of 
the employees, especially managers and key employees; directly responsible for the 
interviewing, hiring and firing of department managers; give monthly written reviews 
of the managers' job performance; talk to managers and key employees when finding 
or receiving any complaints about them; make decision on needed promotions, rewards 
or disciplines on the managers and key employees. Report to Board of Shareholders 
and Supervisory Committee to regularly brief major employment issues. 
The Petitioner also summarized the Beneficiary's duties regarding the opening of its new office, noting 
that the Beneficiary secured an office lease, hired and trained personnel, handled information 
technology services such as setting up the company's communication channels and its website, 
obtained necessary business licenses, and secured sales contracts. In support of this assertion, the 
Petitioner submitted numerous documents pertaining to its business operations, including tax returns, 
website printouts, photos of its premises, a copy of its office lease, and payroll records for its 
employees. 2 The Petitioner also submitted a declaration from the Beneficiary discussing the impact 
of the pandemic shutdown on business operations. Finally, the Petitioner submitted a general 
overview of the Beneficiary's role with the foreign parent company and the manner in which the 
Beneficiary contributed to the direction of the foreign parent and its subsidiaries. 
In the denial notice, the Director concluded that the Petitioner had not established the Beneficiary's 
duties have been, and would be, primarily managerial or executive. The Director noted that the 
statement of duties was vague and general, and did not provide a clear overview of the actual duties 
performed by the Beneficiary. The Director also noted that the nature of the Beneficiary's foreign 
duties, and the extent to which they were relevant or contemporaneous to the Beneficiary's duties in 
the United States, was unclear. Finally, the Director concluded that the Petitioner had not established 
the existence of subordinate staff who would relieve the Beneficiary from performing non-qualifying 
duties. 
On appeal, the Petitioner provides an overview of the history and corporate structure of the parent 
company and its subsidiaries, as well as financial documentation demonstrating the business 
operations of these entities. The Petitioner claims that the Beneficiary "writes policies and rules on 
behalf of the company and also plans for the growth of the Corporate entity," in addition to regularly 
meeting with the Board of Directors as well as shareholders to provide updates on the company's 
management. The Petitioner resubmits the previously submitted overview of the Beneficiary's duties, 
referring to this document as a summary of the Beneficiary's "executive" duties, while simultaneously 
claiming that he is managing the U.S. entity and supervising its newly-hired personnel. 
2 We note that much of the submitted documentation originated after the filing of the extension petition. 
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Here, the Petitioner has offered competing claims about the Beneficiary's employment. On the one 
hand, it states that the Beneficiary will perform "executive duties," where he will focus on policy, 
goals and strategy, while on the other hand, it claims that the Beneficiary would manage personnel, 
including hiring, training, and interviewing new employees. Further, despite providing a job duty 
breakdown with time allocations, the Petitioner did not clearly describe the Beneficiary's proposed 
position or convey a meaningful understanding of his actual daily tasks. For instance, the Petitioner 
stated that the Beneficiary would make and adjust the company's policies, goals and strategies, but it 
provided no specific information describing these polices, goals and strategies. 
The Petitioner also stated that the Beneficiary would formulate short- and long-term trading and 
financial investment plans. However, the Petitioner did not identify any of the Petitioner's investments 
or specify the actions the Beneficiary would take to increase efficiency within the scope of the U.S. 
operation. Further, in considering the claim that the Beneficiary would make personnel decisions and 
train new hires, we cannot overlook the fact that the Petitioner hired no employees during the one-year 
period allotted to opening its new office, including several pre-pandemic months. 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. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
The Petitioner has not consistently stated whether the Beneficiary's job duties should be classified as 
executive or managerial, and it has also provided deficient job descriptions that preclude a meaningful 
understanding of precisely how the Beneficiary would either direct the management of the 
organization and set that organization's policies or how he would manage the organization and 
supervise act as a personnel manager. Furthermore, the fact that the Beneficiary will manage or direct 
the business does not necessarily establish eligibility for classification as an intracompany transferee 
in a managerial or executive capacity within the meaning of section 101 (a)( 44) of the Act. By statute, 
eligibility for this classification requires that the duties of a position be "primarily" managerial or 
executive in nature. Sections 101(A)(44)(A) and (B) 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, these elements alone are insufficient to establish that the 
Beneficiary's actual duties would be primarily managerial or executive in nature. The Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
I&N Dec. at 376. The Petitioner's failure to meet fundamental requirements, as described above, 
impedes our ability to assess the Beneficiary's role within the scope of the U.S. organization. Finally, 
given the vague references to the Beneficiary's level of responsibility within the overall corporate 
hierarchy and his interaction and oversight of foreign departments and personnel, we lack a meaningful 
understanding of how, if at all, he would be relieved from primarily performing non-qualifying duties 
by any foreign-based subordinates. 
Beyond the required description of the job duties, we also examine the company's organizational 
structure, the duties of a beneficiary's subordinate employees, the presence of other employees to 
relieve a beneficiary from performing operational duties, the nature of the business, and any other 
factors that will contribute to understanding a beneficiary's actual duties and role in a business. 
Because a petitioner must meet all eligibility requirements at the time of filing, we must consider the 
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state of the company at the time it filed the extension petition in December 2020. See 8 C.F.R. 
§ 103.2(b)(l). 
At the time of filing the extension petition, the Beneficiary was the Petitioner's only employee. We 
acknowledge the Petitioner's assertion that it faced extreme difficulties in hiring employees and 
conducting routine business transactions in its first year of operations as a result of the COVID-19 
pandemic. The record reflects, however, that the Petitioner hired no employees other than the 
Beneficiary during the one-year new office period. Notably, no employees were hired between 
December 2019 and March 2020, before the pandemic struck. Moreover, while the Petitioner asserts 
in response to the RFE and on appeal that it has conducted numerous business transactions and hired 
several employees, all of these activities occurred after the filing of the extension petition. 
USCIS must take into account the reasonable needs of the organization in light of the overall purpose 
and stage of development of the organization if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity. See section 101(a)(44)(C) of 
the Act. However, the regulations provide strict evidentiary requirements for the extension of a "new 
office" petition and require USCIS to examine the organizational structure and staffing levels of the 
Petitioner. See 8 C.F.R. § 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only 
allows the "new office" operation one year within the date of approval of the petition to support an 
executive or managerial position. If a business does not have the necessary staffing after one year to 
sufficiently relieve the beneficiary from performing operational and administrative tasks, the petitioner 
is ineligible for an extension. Here, while the Petitioner claims that the Beneficiary has been and will 
continue to be employed in a primarily managerial or executive capacity, it does not explain how the 
Beneficiary was relieved from performing non-qualifying duties at the time of filing without 
subordinate employees to support him. The fact that the Petitioner hired new employees subsequent 
to the filing of the extension petition is insufficient to establish that the Petitioner could support the 
Beneficiary in a primarily managerial or executive position at the time of filing. 
We acknowledge the Petitioner's submission of evidence pertaining to its parent company and 
affiliates in support of its global presence and the Beneficiary's broader role within the overall 
corporate hierarchy. Although the Petitioner includes some descriptions of the tasks the Beneficiary 
has performed for these companies, and implies on appeal that the Beneficiary directs various 
departments within the corporate hierarchy such as international and domestic business, capital 
management, information resources, and administrative management, it is unclear whether these 
duties were performed exclusively during his previous employment abroad, or whether they are 
performed contemporaneously with his role as general manager for the U.S. office. The Petitioner 
does not sufficiently identify the Beneficiary's placement within the company's overall hierarchy or 
state the number of foreign-based employees, if any, who report directly to him or are otherwise 
available to relieve him from performing non-qualifying duties under the extended petition. Therefore, 
although we acknowledge the Petitioner's general assertion that the Beneficiary maintains a role in 
the overall corporate hierarchy while serving as general manager for the U.S. company, the record 
contains insufficient evidence that this role affects his U.S. employment such that he is relieved from 
performing non-qualifying duties. 
In sum, the regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows the "new office" operation one year 
within the date of approval of the petition to support an executive or managerial position. If a business 
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does not have the necessary staffing after one year to sufficiently relieve the Beneficiary from 
performing operational and administrative tasks, the Petitioner is ineligible for an extension. Here, 
the Petitioner did not demonstrate that a subordinate staff was available at the time of filing to perform 
the non-qualifying operational and administrative duties of the business. 
We acknowledge that the COVID-19 pandemic posed challenges for both new and established 
businesses. While we note the Petitioner's claimed hardships as a result of the pandemic, the one-year 
new office period included several pre-pandemic months, and the Petitioner cites no USCIS policies 
or announcements that would extend the one-year new office period mandated by the regulations. 
Finally, we note that while the appeal was pending, USCIS updated the USCIS Policy Manual's 
guidance regarding deference to prior approvals. See 2 USCIS Policy Manual A.4(B)(l ), 
https://www.uscis.gov/policymanual; see also USCIS Policy Alert, PA-2021-05, Deference to Prior 
Determinations of Eligibility in Requests for Extensions of Petition Validity (Apr. 27, 2021), 
https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210427-Deference.pdf. 
However, we do not defer to prior approvals where there has been a material change in circumstances 
or eligibility requirements. 2 USCIS Policy Manual, supra, at A.4(B)(l ). This includes situations in 
which the regulations require criteria to be met after approval, such as L-lA extension petitions for 
new offices detailed at 8 C.F.R. § 214.2(1)(3)(v)(C) (a new office has one year from the date of the 
initial approval to support an executive or managerial position). See 8 C.F.R. § 214.2(1)(14)(ii) (a 
petitioner seeking to extend an L-1 petition that involved a new office must submit a statement of the 
beneficiary's duties during the previous year and under the extended petition; a statement describing 
the staffing of the new operation and evidence of the numbers and types of positions held; evidence 
of its financial status; evidence that it has been doing business for the previous year; and evidence that 
it maintains a qualifying relationship with the beneficiary's foreign employer). 
Here, while we acknowledge the Director's prior approval of the Petitioner's new office petition, we 
will not defer to the prior approval because, as noted above, the record does not credibly demonstrate 
that the Petitioner has the necessary staffing after one year to sufficiently relieve the Beneficiary from 
performing operational and administrative tasks. 
III. CONCLUSION 
For the reasons discussed above, the record does not show that the Petitioner would employ the 
Beneficiary in a primarily managerial or executive capacity, or that the Petitioner's new office had 
developed to an extent that it could support a primarily managerial or executive position at the time it 
filed the extension petition in December 2020. 
ORDER: The appeal is dismissed. 
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