dismissed L-1A Case: Mineral Product Distribution

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 15, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a distributor of lime (mineral products derived from limestone), seeks to temporarily 
employ the Beneficiary as managing director of its new office1 under the L-lA nonimmigrant 
classification for intracompany transferees. Immigration and Nationality Act (the Act) 
section 10l(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 new office would support a managerial or executive position within one 
year after approval of the petition. 
The matter is now before us on appeal. On appeal, the Petitioner asserts that the Director did not fully 
consider the evidence and information submitted in support of the petition. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 8 C.F.R. § 214.2(1)(3)(v)(B). In addition, the beneficiary must seek 
to enter the United States temporarily to continue rendering his or her services to the same employer 
or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. 
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 
1 The term "new office" refers to an organization which has been doing business in the United States for less than one year. 
8 C.F.R. § 214.2(l)(l)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no more than 
one year within the date of approval of the petition to support an executive or managerial position. 
Matter of S- LLC 
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). 
11. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the new 
office would employ the Beneficiary in a managerial capacity within one year after approval of the 
petition. Therefore, we need not discuss the requirements of an executive capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See sections 10l(a)(44)(A)(i) and (ii) of the Act. Personnel managers are required to 
primarily supervise and control the work of other supervisory, professional, or managerial employees. 
The term "function manager" applies generally when a beneficiary's managerial capacity derives not 
from supervising or controlling a subordinate staff, but instead from primarily 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 this instance, the Petitioner has specified that it seeks to employ 
the Beneficiary as a function manager. 
Based on the statutory definition of managerial capacity, the petitioner must first show that the 
beneficiary would 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 would be primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 
(9th Cir. 2006); Champion World, 940 F.2d 1533. 
When examining the claimed managerial capacity of a given beneficiary, we will look to the 
petitioner's description of the job duties. The petitioner's description of the job duties must clearly 
describe the duties to be performed by the beneficiary and indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). 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 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. 
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Matter of S- LLC 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
During its first year of operations, the Petitioner intends to employ the Beneficiary as its managing 
director, plus three others: 
• Operations Manager 
• Commercial Sales Manager 
• Administrative Assistant 
The Petitioner also indicated that it would hire a sales representative during the second year. 
The Petitioner submitted a table, signed by the company's operations manager, purporting to identify 
the tasks that the Beneficiary would perform over the course of a 44-hour work week. The table 
divided the proposed duties into four main categories: 
Task 
Marketing tasks 
Supervision of matters of accounting 
Management of compliance with law and policies of the Florida Division of 
Restaurants and Hotels 
Sales tasks 
Hours 
14 
2 
4 
24 
In addition to "[m]anagement of compliance with law and policies of the Florida Division of 
Restaurants and Hotels," the "Sales tasks" portion of the table indicated that, for two hours per week, 
the Beneficiary would "[c]reate a directory of contact information and database of hotels' 
representatives hotels) to support our company in offering our business products 
and services." The Petitioner did not explain why a distributor of mineral products would need to 
interact with hotels and comply with hotel-related regulations. 
The Petitioner's business plan included job descriptions for the managing director and the other 
employees. The business plan's description for the managing director did not match the description 
discussed above. The business plan description does not mention hotels, but it does include several 
other responsibilities that are absent from the other version of the job description, such as the following 
examples: 
• Develop requirements and budgets for the firm and special projects. 
• Maintain staff by recruiting , selecting , orienting , and training employees. 
• Establish the frequency , and most economical and efficient shipping method by 
selecting appropriate container and packs items to ensure safe delivery. 
Packing items for shipment is not a managerial task, and its presence in the job description raises 
questions similar to those raised by the other description ' s references to the hotel industry. 
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Matter of S- LLC 
We acknowledge that, during the first year of a new office's operation, a manager or executive may 
perform additional operational startup tasks. In such a case, it may be permissible for the managing 
director to temporarily be responsible for order packing, while awaiting the arrival of other employees 
to assume that task on a permanent basis. But in this instance, the Petitioner has not identified any 
current or future employees who would be responsible for packing items for shipping. 
If, on the other hand, the company will not be involved in packing and shipping because the foreign 
parent company will perform that task, then packing tasks should not be in anyone's job description 
at the U.S. company, let alone that of the managing director. Either way, the presence of the packing 
reference in one version of the Beneficiary's job description raises serious questions that the Petitioner 
has not answered. 
The managing director's job description referred to "working with the Board" and "the overall 
operation and effectiveness of the corporation." The Petitioner is not a corporation, and it does not 
have a board of directors. Rather, it is a limited liability company, managed by its two members. The 
Beneficiary is one of those members, and the other is the foreign parent company ( of which the 
Beneficiary owns the plurality of shares). 
The job description also referred to managing "multiple vendors" and "[a]ssisting with the 
development of new products for businesses." These references appear to be incompatible with the 
Petitioner's stated purpose, which is to distribute products developed and manufactured by a single 
source - the foreign parent company. 
The job description also indicated that the position requires a "degree in Mining Engineering, Business 
Administration or other related field." The Beneficiary's degrees are in pharmacy and food science; 
her own resume referred to her as a pharmacist. Therefore, the Petitioner's own business plan suggests 
that the Beneficiary is not qualified for the position. 
In a further discrepancy, the Petitioner submitted a business card for its administrative manager, but 
the Petitioner's business plan and organizational chart did not show such a position or any plans to 
create or fill the position in the future. 
The Director informed the Petitioner that additional information would be necessary to establish that 
the Beneficiary's intended position would qualify as managerial within one year after approval of the 
petition. In response, the Petitioner submitted the business plan version of the Beneficiary's job 
description, reformatted in the form of a table, indicating that the Beneficiary would spend 70% of her 
time "[m]anaging daily operations of the organization including the supervision of personnel, 
leadership, and making strategic decisions," and 30% on "[m]arketing and sales responsibilities." 
The reference to the Beneficiary spending 30% of her time - 13.2 hours per week- on "[m]arketing 
and sales responsibilities" is not compatible with the other breakdown of duties, which indicated that 
the Beneficiary would spend 38 out of 44 hours per week - 86% - on "[m]arketing tasks" and 
"[s]ales tasks." 
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Matter of S- LLC 
The Director denied the petition, stating: "it appears that the beneficiary will be primarily involved in 
the performance of routine operational activities of the entity rather than in the management of a 
function of [the Petitioner's] business." 
On appeal, the Petitioner asserts that it has put forth a realistic business plan to market and sell "the 
products being manufactured by its parent firm," and that its "organizational structure ... is very 
appropriate for a start-up enterprise in the US." The Petitioner contends: "The proposed beneficiary 
will primarily focus her responsibility in the performance of the subsidiary's high-level managerial 
duties," with "the primary responsibility of ensuring organizational effectiveness by providing 
leadership for the organization's operational functions." The Petitioner adds that the Beneficiary 
"[l]eads the work of shipping and receiving personnel performing related work." 
The Petitioner, however, has no "shipping and receiving personnel," and its business plan shows no 
intention of hiring them during its first year of operations. The only projections for second- and third­
year hiring relate to sales representatives. In this way, the appellate brief continues a pattern of 
inconsistent and contradictory information about the company's staffing. 
The Petitioner asserts that the Beneficiary's involvement "in a variety oflow activities" will be "during 
the first year only." The Petitioner has not provided a consistent picture of what those activities will 
be. As noted above, the Petitioner submitted two very different job descriptions for the same position, 
each containing highly questionable elements. These fundamental discrepancies cast doubt on the 
accuracy of those descriptions and the extent to which the Petitioner has actually defined the true 
duties of the position. 
In the denial notice, the Director cited the percentage figures from the initial job description. The 
Petitioner protests that the "Director did not consider the ... updated percentages of time" provided 
in response to the Director's request for evidence. The Director, however, did not state that the 
percentage figures were a key factor in the denial decision, such that the submission of different 
percentages would clear the way for approval of the petition. 
The Petitioner, furthermore, does not explain why the percentages, and the underlying duties, are so 
different on the two tables. Calling one version "updated" does not resolve the issue, because the 
Petitioner must establish eligibility at the time of filing. See 8 C.F.R. § 103.2(b)(l); see also Matter 
of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998) (a petitioner may not make material changes 
to a petition in an effort to make a deficient petition conform to requirements). Furthermore, the 
percentages that the Petitioner calls "updated" on appeal are on a signed document dated May 2018, 
which is the same month that the Petitioner filed the petition, even though the Petitioner did not submit 
that document until three months later. Apart from those percentages, the job description on that 
document matches the business plan version submitted with the initial May 2018 filing. 
The Petitioner asserts that it need only establish eligibility by a preponderance of the evidence, 
meaning that its assertions are "probably true" or "more likely than not." This is true; however, the 
discrepancies in the Petitioner's submissions, necessarily reflect on the likelihood that the Petitioner's 
assertions are true. Unresolved material inconsistencies may lead us to reevaluate the reliability and 
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Matter of S- LLC 
sufficiency of other evidence submitted in support of the requested immigration benefit. Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
These discrepancies call into question the extent of the Petitioner's actual planning for its business 
activity. This shortcoming is especially significant in the context of a new office petition, in which a 
petitioner must provide details about its planned first year of operations. The inconsistencies in the 
job descriptions and business plan cast doubt on the extent to which the Petitioner has made bona fide 
plans and preparations for its new U.S. office. Based on these inconsistencies, the Petitioner has not 
established that its new office could support a managerial or executive position within one year after 
approval of the 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 ofS-LLC, ID# 2938793 (AAO Apr. 15, 2019)