dismissed L-1A Case: Nutritional Supplements

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-1-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative 'Appeals Office 
DATE: MAY 15,2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a distributor of nutritional supplements, seeks to temporarily employ the Beneficiary as 
president of its new office1 under the L-1 A nonimmigrant classification for intracompany transferees. 
Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 8 U.S.C. § 110I(a)(I5)(L). The L-1A 
classification allows a corporation or other legal entity (including its atliliate 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, concluding that the record did not 
establish, as required, that the new office will support a managerial or executive position within one 
year after approval of the petition. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred by 
mischaracterizing one of the subordinate positions that the Petitioner intends to create. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for theL-IA 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(l)(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 
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 within the date of approval of the petition to support an executive or managerial position. 
Matter of E-1-, Inc. 
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. DEFINITIONS 
"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 
IOI(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 
IOI(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. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive 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. 
III. MANAGERIAL OR EXECUTIVE CAPACITY AT THE NEW OFFICE 
A petitioner seeking to employ a beneficiary as a manager or executive of a new office must 
establish that the new office will support an executive or managerial position within one year of 
approval of the petition. 8 C.F.R. § 214.2(1)(3)(v)(C). The Petitioner asserts on appeal that the new 
office will employ the Beneficiary as a manager and as an executive within a year of approval of the 
petition. 
When the Petitioner filed the petition, it claimed one employee in the United States, but did not 
identify the employee or submit any evidence such as tax or payroll records. It appears that the 
"employee" in question is the Beneficiary, although his B-1 nonimmigrant status does not permit 
him to work for a United States employer. 
2 
.
Matter of E-1-. Inc. 
The Petitioner initially stated that it intended to hir.e three empl oyees during its first year following 
approval of the petition: a sales and marketing manager; a sales representative; and·a man ufacturing 
technici an. The Petitioner 
planned to hire additional staff in later years, but any h iring atler the first 
year would be too late to establi sh eligibility under a new office petition. 
In the denial notice, the Directo r stated: "The new office currentl y appears to be making numerous 
orders from You indicate that this is ' feeling out the market share' and estab lish some 
customers. " The Petition er devotes a full page of the appellate brief to rebutting these two senten ces 
in the denial notice, but the Director appears to have intend ed the passage to be background 
informatio n rather than a basis for denial of the petition. A longer discuss ion of the Petition er's sales 
model would not have changed the outcome of the decision. 
More substantively, the Director based the denial of the petition on a finding that none of the three 
planned subordinates qualifi es as a manager, supervisor, or professional. The Petitioner's core 
argument on appeal is that the sales and marketing manager position is managerial. We will 
therefore focus on that issue. 
In a reque st for evidence (RF E), the Director advised the Petitioner: "You have not provided 
sufficient evidence to establish that the Sales and Marketing Manager would be considered a 
supervisory or managerial level position. It does not seem reasonab le that this person would 
primaril y ove rsee the work of one (1) individu al." 
In response, the Petitioner stated that "a Sale s Manager and Operatio ns Manager . . . have already 
been hired." The Petition er hired those two employee s in July 20 17, a few weeks afte r the Director 
issued the RFE in June. Becau se the Petitioner filled both positions within a year of ti ling the 
petition, we will consider both of them here. The Petitioner's business plan included these job 
descriptions : 
Sl dM k. M a es an ar etmg anage r 
Task Name % Time Alloca ted 
• Assist the Comp any's President in the superv ision of the 15% 
Compa ny's sales and marketing processes 
• Establish and impleme nt sales and marketing strate gies 25% 
• Conduct and obtain customer and market research reports 25% 
• Direct and anal yze sales performan ce evaluations 15% 
• Review sales records to create projectio ns for the coming 10% 
periods 
• Direct and oversee the work of the Company 's Sales 10% 
Representatives and Online Marketin g Specialist 
0 M 'Q_eratw ns anager 
Task Name % Time Alloca ted 
• Oversee produ ction, development , delivery, and other 25% 
3 
Matter of E-1-, Inc. 
activities directlv related to the Comoanv's oroducts 
• Develop, continuously improve, and implement operations 25% 
policies, manufacturing and development strategies and 
obiectives, and other procedures 
• Coordinate dav-to-dav operations 20% 
• Measure the Company's products · delivery and 15% 
nerformance data 
• Direct and oversee the work of [the Petitioner's] 15% 
Manufacturing Technicians 
In its response to the RFE, the Petitioner did not provide any further information about how the 
positions qualified as managerial, or would do so within a year. Payroll records showed that the two 
positions each pay $10 per hour. Although the job descriptions list subordinates under both 
positions, the Petitioner did not claim to have hired those subordinates. 2 
The positions documented in September 2017, when the Petitioner responded to the RFE, deviated 
from the hiring schedule originally claimed in the business plan: 
Business plan (excerpts): 
• Sales and Marketing Manager 
To be hired first year 
$40,000/year 
• Operations Manager 
To be hired second year 
$40,000/year 
• Sales Representative 
One to be hired first year 
$35,000/year 
• Manufacturing technician 
One to be hired first year 
$20,000/year 
Payroll records in RFE response: 
• Sales and Marketing Manager 
Started work July 9, 2017 
$20,800/year ($1 0/hr, 40 hrs/wk) 
• Operations Manager 
Started work July 9, 20 I 7 
$20,800/year ($1 0/hr, 40 hrs/wk) 
• One unspecified employee 
Started work August 7, 2017 
$13,572/yr ($9/hr, 29 hrs/wk) 
Because the Petitioner is no longer following the initial schedule, that schedule is not a reliable 
indicator of the support personnel that the Petitioner will employ during its first year of operations 
under the new office petition. The sales and marketing manager and operations manager do not have 
the subordinates named in their job descriptions. Furthermore, the actual salary payments 
documented in the RFE response are a little over half of the figures claimed in the business plan. 
2 
Payroll records from August 2017 named a third employee, earning $9 per hour part time, but the Petitioner did not 
explain that person's title or duties, and in an accompanying statement, the Petitioner stated that it had submitted "proof 
of two employees." Because the Petitioner has not provided any information about the third employee's responsibilities, 
this August 2017 hiring does not contribute to a finding that the Beneficiary is a manager or executive, or that his 
subordinates are managers. 
4 
Mauer of E-1-, Inc. 
There is little reason to conclude that the business plan is largely accurate in its description of the job 
duties, because it is demonstrably inaccurate with respect to the hiring schedule, availability of 
subordinates, and salaries. 
On appeal, the Petitioner submits a printout from O*NET, a Department of Labor-sponsored 
database of employment information. The printout lists the tasks of a "Sales Manager." The 
Petitioner states that these tasks are clearly managerial in nature, and that its sales and marketing 
manager is, by definition, a sales manager and therefore a manager. The O*NET listing, however, is 
a generic guide; the use of the title "sales manager" or something close to it does not prove that a 
given position actually has the duties shown in the O*NET listing. 
The Petitioner has already made some sales, and thus begun doing business. The Petitioner does not, 
however, claim to have hired sales representatives to sell the products or manufacturing technicians 
to prepare and ship the products, which means that someone else at the company i~ doing so. It is 
possible that the third employee shares some of those duties, but the Petitioner has not shown this to 
be the case, and that third employee started later, and works shorter hours, than the other two 
employees. 
A manager manages, rather than performs, the operational tasks of the company or a component 
thereof. The Beneficiary's two fully-identified subordinates have no subordinates of their own and 
therefore appear to be performing the functions they purport to manage. Given the many 
inaccuracies in the business plan, the Petitioner has not shown that this situation would change 
significantly during the company's first year of operations under a new office petition. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that .person's authority to direct the organization. Section I 01 (a)( 44 )(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and a beneficiary must 
primarily focus on the broad goals and policies of the organization rather than the day-to-day 
operations of the enterprise. An individual will not be deemed an executive under the statute simply 
because they have an executive title or because they "direct" the enterprise as an owner or sole 
managerial employee. A beneficiary must also exercise "wide latitude in discretionary decision 
making" and receive only "general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization." /d. 
Concluding that the Petitioner has not shown that the Beneficiary will supervise managers within a 
year, the Director stated that an executive must supervise "a subordinate level of managerial 
employees." The Petitioner disputes this assertion oh appeal, stating that the Director cited "no 
statutory or judicial authority for its assertion that the organization must have a subordinate level of 
managerial employees." The Petitioner added that if such a requirement existed, there would be no 
difference between a manager and an executive. 
5 
Matter of E-1-. Inc. 
A key difference between a manager and an executive, as defined in the Act, is that a manager 
manages an organization or a subdivision thereof, but an executive "directs the management." This 
distinction forms the root of the Director's assertion that an executive must have "a subordinate level 
of managerial employees." The Petitioner is partially correct, insofar as the Act does not specifically 
define "the management" as managerial employees. It is conceivable that the management could 
take the form of contractors, for instance, provided that the executive maintained the proper level of 
oversight and control of those contractors. But whether "the management" is the same as 
"managerial employees," an executive cannot "direct the management" while at the same time being 
all, or part, of"the management" itself. 
The Petitioner has claimed a level of managerial employees, but has not shown that those individuals 
actually qualify as managers, or will do so within a year of approval of the petition. The Petitioner 
has not shown that the new otlice will support an executive position within the required year. 
We now tum from executives to managers. 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." Section l0l(a)(44)(A) of the Act. 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 tire those employees, or recommend those actions, and take other personnel actions. Sections 
10l(a)(44)(A)(ii)-(iii) of the Act. 
To determine 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. Cf 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 10l(a)(32) of the Act 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." 
In this instance, the Director found that the Petitioner has· not shown that any of the planned 
positions subordinate to the Beneficiary are professional positions, requiring at least a bachelor's 
degree. The Petitioner does not contest this finding on appeal. We agree with the Director's 
finding; the record does not establish the education requirements of the subordinate positions or the 
educational credentials of the employees who hold those positions. 
The Director found that the Petitioner had "not established that the Sales and Marketing Manager 
would be ... a supervisory or managerial level position" within a year of approval, because "[t]he 
Sales and Marketing Manager is not indicated to have any direct subordinates in the first year." On 
appeal, the Petitioner states that the "Beneficiary will be performing primarily managerial duties at 
the end of the initial one-year period of approval," and "will have direct supervision over the initial 
Sales representative." 
6 
Maller of E-1-, Inc. 
As we have shown, the Petitioner initially indicated that the sales and marketing manager would 
supervise a sales representative before the end of the first year. We have also shown, however, that 
subsequent developments have not been consistent with the initial business plan. The Petitioner has 
begun conducting sales work, but has not shown that it employs any sales representatives under the 
authority of the sales and marketing manager. The lack of demonstrated subordinates, together with 
the significantly reduced salary, does not tend to support a finding that the sales and marketing 
manager is primarily a manager or supervisor rather than a front-line sales worker. Because of the 
doubt and questions concerning exactly what the sales and marketing manager is doing, the 
Petitioner has not established that the position is supervisory or managerial. The Petitioner also has 
not shown that the position is professional. 
On appeal, the Petitioner does not discuss the operations manager, but the above analyses apply 
equally to that position. The supervisory or managerial nature of the position is contingent on 
subordinates whom the Petitioner does not appear to employ, and the assertion that the Petitioner 
will employ them soon lacks credibility because the business plan is otherwise unreliable and in 
conflict with demonstrated facts in the record. 
The Petitioner has not shown that the Beneficiary's subordinates are professionals, or will be acting 
as managers or supervisors within a year after approval of the petition. Therefore, the Petitioner has 
not shown that the Beneficiary will be a manager or executive during that required period. 
IV. CONCLUSION 
The Petitioner did not establish that its new office will support a managerial or executive position 
within a year of approval of the new office petition. 
ORDER: The appeal is dismissed. 
Cite as Maller of'£-1-. Inc., lD# 1181130 (AAO May 15, 2018)