dismissed L-1A Case: Optoelectronics

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : JUNE 9, 2023 In Re: 27187203 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA Manager or Executive) 
The Petitioner, a manufacturer of optoelectronics, seeks to continue its employment of the Beneficiary 
temporarily as its "contracts manager" under the L-lA nonimmigrant classification for intracompany 
transferees who are coming to be employed in the United States in a managerial or executive capacity. 1 
Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary was employed abroad and would be employed in the United States in a 
managerial or executive capacity . The Petitioner subsequently filed an appeal, which was summarily 
dismissed. The matter is now before us on a combined motion to reopen and reconsider. The 
Petitioner argues that we erred in summarily dismissing the appeal and provides a copy of the appeal 
brief and FedEx receipt showing that the brief was timely filed. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, the Petitioner has 
overcome the basis of our summary dismissal by showing that the appeal brief was timely and properly 
filed. As such, we will withdraw the summary dismissal and issue a decision on the merits. However, 
upon de novo review, we will dismiss this motion because the Petitioner did not establish that the 
Beneficiary's position abroad was in a managerial capacity. 2 Further, because the identified basis for 
denial is dispositive of this motion, we decline to reach and hereby reserve the Petitioner's arguments 
regarding the Beneficiary's proposed employment in the United States. See INS v. Bagamasbad, 429 
U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of 
which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7 
(BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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, or in a position requiring 
1 The Beneficiary initially came to the United States to work for the Petitioner under an approved blanket L-1 petition . 
2 The Petitioner claims that the Beneficiary was employed in a managerial capacity and does not claim that the foreign 
employment was in an executive capacity. 
specialized knowledge 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)(1). 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. 8 C.F.R. 
§ 214.2(1)(3)(ii). 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as an assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component 
of the organization; 
(ii) 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; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization), or if no other employee is directly 
supervised, functions at a senior level within the organizational hierarchy or 
with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. 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. 
II. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The issue to be addressed is whether the Petitioner provided sufficient evidence establishing that the 
Beneficiary's position abroad was in a managerial capacity. 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Section 101(a)(44)(A) of the Act. The 
Petitioner must also prove that the Beneficiary 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). 
Further, the statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(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 
101(a)(44)(A)(ii) of the Act. If a petitioner claims that a beneficiary managed an essential function, it 
must clearly describe the duties performed in managing the essential function. In addition, the 
petitioner must demonstrate that "(1) 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, 
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2017). In this matter, the Petitioner has not provided sufficient evidence that the Beneficiary managed 
an essential function. 
The petition shows that the Petitioner claimed nearly 1900 employees in the United States and a gross 
annual income of over $500 million. In a supporting cover letter, the Petitioner discussed the 
Beneficiary's former position abroad as a global contract manager in the "Business Administration 
Sales Europe department," where he is said to have "held full responsibility for the Contract 
Management Professional, CCON COE Commercial EMEA function." The Petitioner stated that this 
function is essential to the organization and listed the following six job duties as the components of 
the Beneficiary's position abroad: 
• Checking, negotiating, undertaking risk analysis and administration of global sales contract[ s] 
.... (10%) 
• Risk assessment of contracts as part of business case management. (20%) 
• Working out compromise [sic] solutions such as long-term availability, warranty, limitation of 
liability. (10%) 
• Coordinating with the involved specialty departments .... (20%) 
• Contact partner for colleagues from the specialty departments . . . for customer contract 
questions and for providing professional advice on contract management. (10%) 
• Designing and implementing key contract archives worldwide and setup limited authorization 
structures, projects ... for case-by-case analysis of contracts, reporting and automation. (30%) 
In addition, the Petitioner stated that the Beneficiary also had supervisory responsibilities and "was 
responsible for alignment of Global Contract Management requirements and process, including T &C's 
and conducting counter measure regarding audit findings; cross-functional Contract Management 
Guideline, and worldwide implementation of a Business Case Assessment Workflow platform to 
evaluate and document contractual risks .... " The Petitioner did not explain how these additional 
responsibilities fit within the six job duties listed above, nor did it disclose whom the Beneficiary 
supervised or the supervisory responsibilities he carried out in the course of managing the "Contract 
Management Professional, CCON COE Commercial EMEA function." 
Moreover, in a separate letter authored by the foreign company's human resources (HR) team lead, 
the phrase "not applicable" was used to describe the Beneficiary's involvement in "supervisory 
responsibilities," thus contradicting claims made in the supporting cover letter regarding the 
Beneficiary's supervisory responsibilities. The Petitioner must resolve this inconsistency with 
independent, objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-
92 (BIA 1988). The same HR letter described the Beneficiary as "an outstanding service provider" 
and stated that he "performed particularly well in developing and implementing processes as part of 
policies and tools" and was directly involved in not only developing tools that are used in business 
case management, but also in creating the instruction manual on the use of such tools. It is unclear 
how much time the Beneficiary allocated to these operational job duties as they were not included 
among the six duties listed in the job duty breakdown. Furthermore, in order to establish that the 
Beneficiary's position abroad was in a managerial capacity, the Petitioner must demonstrate that the 
Beneficiary primarily managed, rather than performed the underlying duties of the function he is 
claimed to manage. See Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is 
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not considered to be "primarily" employed in a managerial or executive capacity. See, e.g., sections 
10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); Matter ofChurch Scientology Int'!, 19 I&N Dec. 593,604 (Comm'r 1988). Here, 
the information provided does not establish that the Beneficiary primarily performed duties that are 
indicative of managing an essential function. 
Also unclear is the placement of the Beneficiary's position within the foreign entity's organizational 
structure. Although the Petitioner provided a diagram depicting the Beneficiary and the managing 
director to whom the Beneficiary reported, no further information was provided establishing the 
placement of this reporting structure within the broader organizational hierarchy or within the context 
of the department to which the Beneficiary's position was assigned. 
In a request for evidence (RFE), the Director informed the Petitioner that the job description provided 
was too general and did not disclose the Beneficiary's daily job duties within the scope of the foreign 
entity's business activities and corporate structure. The Director also listed the key parameters used 
to define a function manager and found that the Beneficiary's claimed function was not sufficiently 
defined within those parameters. In addition, the Director asked for an organizational chart or diagram 
of the foreign organization's reporting structure and staffing levels as well as a list of the employees 
in the Beneficiary's department along with their job titles and job descriptions. 
In response, the Petitioner provided a letter signed byl lhead of HR. In discussing the 
Beneficiary's employment abroad,! ldid not reiterate the Petitioner's original claim that the 
Beneficiary managed an essential function, nor did he identify an essential function. Rather,D
I I stated that the Beneficiary had a "team" of four subordinates "who reported to him ... and 
whom [sic] implemented his decisions," but he did not elaborate on the decisions they are claimed to 
have implemented or list their respective job duties to explain how supported the Beneficiary in what 
is claimed to have been a managerial position. The Petitioner also did not provide supporting evidence 
reconciling I lclaim and the information contained in the previously submitted letter from 
the foreign entity's HR team lead, who indicated that supervisory responsibilities were not applicable 
to the Beneficiary's position with the foreign entity. See id. I lalso stated that the 
Beneficiary "was responsible for leading Global Contract Management" which involved developing 
systems and processes "to underpin robust contract management and reporting," maintaining regular 
correspondence with "legal entities worldwide" who were responsible for implementing those systems 
and processes, and "handling individual customer contracts"; he added that the Beneficiary also 
"regularly checked, negotiated, undertook risk analysis and administration" of various contracts and 
settlement agreements, worked with various departments within the organization in conducting risk 
assessment of the organization's contracts, and designed the organization's contract archives 
worldwide. However, the Petitioner did not establish that duties such as developing systems and 
processes, handling customer contracts, and conducting risk analysis, were managerial, as opposed to 
operational in nature. 
Furthermore, although I !provided a job duty breakdown of the Beneficiary's position 
abroad, that breakdown is not consistent with the one contained in the Petitioner's initial supporting 
cover letter, which contained a list of six job duties and the percentage of time assigned to each duty. 
The job duty breakdown contained inl Iletter, however, consists of 20 job duties, each 
listed under one of four categories - sales contract management, strategic development, managing 
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people, and trammg and development. Although both job duty breakdowns indicate that the 
Beneficiary interacted with various departments within the organization for the purpose of 
coordinating certain activities associated with executing contracts and providing customer service in 
the course of contract execution, there is little overlap between the two job descriptions and no 
clarification was offered explaining how to interpret the new job duty breakdown within the context 
of the six-duty job description provided in the original supporting cover letter. The purpose of the 
RFE is to elicit farther information that clarifies whether eligibility for the benefit sought has been 
established. 8 C.F.R. § 103.2(b)(8). As such, an RFE response should not include evidence that 
materially changes a beneficiary's position title, level of authority within an organization, or their 
associated job responsibilities. See Matter ofIzwnmi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998) 
( establishing that a petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements). 
In the matter at hand, the Petitioner did not merely elaborate on an already existing job description, 
but rather provided an entirely new job description with new job duties that show a departure from the 
original job description. Most notably, while the new job description states that the Beneficiary 
allocated 30% of his time to managing people and 5% to training and development, neither element 
was listed in the original job duty breakdown, not to mention that the responsibility of employee 
supervision was previously indicated as "not applicable" to the Beneficiary's position abroad. 
Moreover, the same job duties comprising the new job duty breakdown for the foreign position, which 
did include supervisory responsibilities for four direct reports, were listed in the job description of the 
proposed U.S. position. These unresolved inconsistencies preclude us from conducting a meaningful 
review of the Beneficiary's job duties, which are critical to determining whether the foreign position 
was in a managerial capacity. See 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) (stating that the actual duties themselves reveal the true nature 
of the employment). 
Further, we note thatl Iallocated a percentage of time to each category, rather than to each 
individual job duty, as instructed in the RFE. Likewise, the Petitioner did not comply with the RFE's 
request for a detailed organizational chart of the foreign entity. Although I I signed an 
organizational chart showing a limited reporting structure of the Beneficiary overseeing four 
employees - three in Germany and one in China - that chart lists the Beneficiary in the position of 
"contract management" and shows this position as based in I ~, thus indicating that this 
reporting structure pertains to the Beneficiary's proposed position in the United States rather than his 
former position in Germany. Although the RFE response contains one other diagram depicting the 
Beneficiary and his superior, this too appears to pertain to the U.S. position as it lists I I as 
the superior, whereas the diagram submitted originally showed! las the Beneficiary's 
superior in his position with the foreign entity. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
On appeal, the Petitioner reiterates information about the Beneficiary's position abroad, maintaining 
that the Beneficiary's position as global contract manager was core to the foreign entity given the 
importance of sales contracts within the context of the foreign entity's business activities. The 
Petitioner asserts that the Beneficiary was responsible for the development and implementation of the 
organization's contractual obligations worldwide as well as identifying "contractual concerns" and 
making recommendations to those responsible for addressing the identified concerns. While the 
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Beneficiary's responsibilities indicate that he performed critical functions during his employment 
abroad, they do not establish that the Beneficiary managed an essential function, as originally claimed. 
As discussed earlier, the Petitioner has offered deficient evidence regarding the Beneficiary's position 
abroad, including conflicting job duty breakdowns and inconsistent information as to whether the 
Beneficiary managed others in the course of executing his job responsibilities. 
Moreover, the Petitioner has not consistently identified the function the Beneficiary is claimed to have 
managed. As noted earlier, in the initial supporting cover letter, the Petitioner stated that the 
Beneficiary managed the "Contract Management Professional, CCON COE Commercial EMEA 
function." On appeal, however, the Petitioner confusingly refers to the global contracts manager as a 
function and states that the Beneficiary "has primarily managed the position of Global Contracts 
Manager," thus indicating that the Beneficiary's position is synonymous with the function. The 
Petitioner does not acknowledge or reconcile these irregularities, nor did it provide organizational 
charts or diagrams clarifying the Beneficiary's role and placement within the foreign organization or 
with respect to the function he is claimed to have managed. Therefore, although the Petitioner stresses 
the Beneficiary's "complete discretion" over the contracts he managed and states that he worked "at a 
senior level," it has not adequately supported these claim; when asked, the Petitioner did not provide 
the requested organizational chart depicting the Beneficiary's position within the context of the foreign 
entity's staffing structure. The Petitioner must support its assertions with relevant, probative, and 
credible evidence. See Matter of Chawathe, 25 I&N Dec. 369,376 (AAO 2010). 
For the reasons discussed above, the Petitioner did not establish that the Beneficiary's position abroad 
was in a managerial capacity as defined in the statute governing this classification. 
ORDER: The motion is dismissed. 
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