dismissed L-1A Case: Pet Supplies

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-P-1- INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 29, 2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a designer, manufacturer, and seller of pet supplies, seeks to continue the Beneficiary's 
temporary employment as its operation director under the L-1 A nonimmigrant classification for 
intracompany transferees.1 Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. 
§ 1101(a)(15)(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 Vermont Service Center denied the petition, concluding that the record 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 Beneficiary's entry into the 
United States was delayed due to a lengthy visa processing time at the U.S. Consulate in 
South Korea, leaving him limited time to develop the business during the first year. The Petitioner 
contends that its evidence demonstrates that the Beneficiary was acting in a managerial capacity 
overseeing supervisors and professionals at the time it responded to the Director's request for 
evidence (RFE) in October 2017. In light of the circumstances, the Petitioner requests that we 
consider the company's ongoing growth subsequent to the date of filing, allow the Beneficiary to 
"recapture" the period of time he spent outside the United States, or grant the Petitioner an additional 
one-year period of approval as a new office. 
Upon de nova review, we will dismiss the appeal. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
August 1, 2016, until July 31, 2017. 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)(1 )(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. 
Matter of N-P-1- Inc 
I. LEGAL FRAMEWORK 
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; 
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. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The sole issue to be addressed is whether the Petitioner has established that the Beneficiary would be 
employed in a managerial capacity under the extended petition. The Petitioner does not claim that 
the Beneficiary would be employed in an executive capacity. Therefore, we restrict our analysis to 
whether the Beneficiary would be employed in a managerial 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. 
When examining the managerial capacity of a given beneficiary, we will review 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 
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. Accordingly, we will discuss evidence regarding 
the Beneficiary's job duties along with evidence of the nature of the Petitioner's business, its staffing 
levels, and its organizational structure. 
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Matter of N-P-1- Inc 
A. 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 
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. 
The Petitioner stated that its parent company in South Korea "manufactures and wholesales fashion 
pet clothes and accessories" and that it planned on importing these products and selling them in the 
United States. The Petitioner indicated that the Beneficiary would spend 40% of his time on "people 
management," including hiring and dismissing personnel, allocating and assigning job duties to his 
subordinates, setting and executing policies, and establishing salaries and benefits. Further, the 
Petitioner explained that the Beneficiary would devote 30% of his time to "business and operation," 
performing such duties as overseeing and directing the entire operation, making decisions on the 
introduction and development of services and products, and implementing new business 
opportunities. In addition, it stated that this area of responsibility will also include: directing 
subordinates on market research and analysis; executing marketing, sales planning, and strategy; 
developing an immediate and long term business plan; selecting vendors and distributors; setting up 
goals, objectives, policies, and procedures; and implementing new sales technologies. 
The Petitioner also indicated that the Beneficiary would be responsible for "financial control" 20% 
of the time, performing such duties as approving all financial and investment matters, controlling the 
company budget and major accounting activities, reviewing "staffing requirements required for 
certain projects," assuring that requested funds are provided for "the success of on-going projects," 
dealing with financial institutions for required loans for "new projects," and discussing the 
interjection of funds with the foreign parent. Lastly, it explained that the Beneficiary would spend 
10% of his time on legal and contract matters, including negotiating contract terms with buyers and 
dealers, reviewing and signing sales contracts and loan agreements, and coordinating with tax 
advisors. 
The submitted duty description is not sufficiently detailed and does not describe the Beneficiary's 
day-to-day managerial duties or credibly establish that he would devote his time primarily to 
qualifying tasks. Specifics are clearly an important indication of whether a beneficiary's duties are 
primarily 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). 
The Beneficiary's duty descriptions include several generic duties that could apply to any manager 
acting in any business or industry and they do not provide insight into the actual nature of his role 
within the context of the Petitioner's pet supply distribution business. The Petitioner provided 
insufficient examples and little supporting documentation to demonstrate the Beneficiary's 
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Matter of N-P-1- Inc 
performance of qualifying duties, such as personnel policies he set, managerial level decisions he 
made on introducing and developing services and products, "new business opportunities" he 
implemented, market research and analysis he directed, or long-term marketing and strategies he 
focused on. In fact, despite indicating that the Beneficiary would focus on market research and 
marketing strategies, its financial projections for 2018 indicated that the Petitioner would only spend 
$2,708 on "advertising and promotions." 
Likewise, the Petitioner did not describe or document vendors and distributors the Beneficiary 
approved and negotiated with, goals, objectives, policies, and procedures he set up, or new sales 
technologies he discussed with the foreign parent. Further, it did not submit details and 
documentation to support financial and investment matters he approved, company budgets and major 
accounting activities he oversaw, staffing requirements he reviewed for "on-going projects," loans 
he arranged with financial institutions, or buyers and dealers he negotiated with. This lack of detail 
and documentation leaves uncertainty as to whether the Petitioner provided a complete and accurate 
representation of how the Beneficiary would spend his time. Although we do not doubt that the 
Beneficiary has the appropriate level of authority and likely performs some managerial duties, the 
record does not support that the general duties listed would account for 100% of his time as claimed. 
To the extent that the Petitioner submitted evidence relevant to the Beneficiary's day-to-day tasks this 
evidence reflects his performance of a wide range of non-qualifying operational duties. For instance, 
the Petitioner submits several invoices and shipping documents that include the Beneficiary's name 
and e-mail address, suggesting that he is handling these non-qualifying matters and not delegating 
them to subordinates. The Petitioner provided documentation reflecting that the Beneficiary arranged 
space at a pet supply expo in August 2017, and at flea markets in October 2017, for the purpose of 
marketing and selling the Petitioner's goods.2 Further, the Petitioner submitted photographs and 
emails indicating that the Beneficiary arranged to lease a stall to sell goods at a mall as late as 
September 2017. The Petitioner also provided documentation showing that the Beneficiary solicited 
clients after meeting them at an industry event and showing that he organized a photoshoot for its 
products. In contrast, there is no evidence demonstrating that the Beneficiary delegates these non­
qualifying tasks to subordinates nor is there documentation reflecting that his subordinates perform 
these duties. In sum, the submitted documentation indicates that the Beneficiary is likely primarily 
engaged in the performance of non-qualifying operational duties. 
Whether a beneficiary is a managerial employee turns on whether the petitioner has sustained its 
burden of proving that their duties are "primarily" managerial. See section 101(a)(44)(A) of the Act. 
Here, the Petitioner does not document what proportion of the Beneficiary's duties would be 
managerial functions and what proportion would be non-qualifying. The Petitioner submits 
evidence indicating the Beneficiary's involvement in operational-level tasks that do not fall directly 
under managerial duties as defined in the statute, but does not quantify the time he spends on these 
duties. For this reason, we cannot determine whether the Beneficiary is primarily performing the 
2 We note that the petition was filed on July 25, 2017. 
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Matter of N-P-1- Inc 
duties of a manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 
1999). 
Even though the Beneficiary holds a senior position within the organization, the fact that he will 
manage or direct the business does not necessarily establish eligibility for classification as an 
intracompany transferee in an managerial capacity within the meaning of section 101(a)(44)(A) of 
the Act. By statute, eligibility for this classification requires that the duties of a position be 
"primarily" managerial in nature. Id. 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; however, the position descriptions alone are insufficient to establish that his actual 
duties would be primarily managerial in nature. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
capacity, we 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. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act. The Petitioner does not assert 
that the Beneficiary would act as a function manager; therefore, we will only analyze whether he 
would qualify as a personnel manager. Personnel managers are required to primarily supervise and 
control the work of other supervisory, professional, or managerial employees. Contrary to the 
common understanding of the word "manager," 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 101 ( a)( 44 )(A) of the 
Act. If a beneficiary directly supervises other employees, the beneficiary must also have the 
authority to hire and fire those employees, or recommend those actions, and take other personnel 
actions. 8 C.F.R. § 214.2(l)(l)(ii)(B)(3) . 
The Petitioner claimed to have three employees at the time of filing and submitted an organizational 
chart indicating that the Beneficiary would supervise a sales and marketing manager and an office 
service manager. 3 This chart also reflected that the Petitioner intended to hire a fashion designer 
subordinate to the Beneficiary and a sales representative reporting to the sales and marketing 
manager. 
In response to the Director's request for evidence (RFE) in October 2017, the Petitioner emphasized 
that the Beneficiary had been delayed in entering the United States due to a lengthy visa application 
process at the U.S. Consulate in The Petitioner stated that the Beneficiary did not obtain his 
3 We note that the individual identified as the "sales and marketing manager" at the time of filing was later 
identified as a part-time sales associate. The "office service manager" identified on the initial organizational chart 
worked for the Petitioner for only four weeks in July and August 2017. 
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Matter of N-P-1- Inc 
L-1 A visa until January 2017 and that he did not enter the United States until March 2017, giving 
him only approximately four months to sufficiently launch the business. The Petitioner provided an 
updated organizational chart as of October 201 7 which reflected that the Beneficiary was overseeing 
a manager (also referred to as the office service manager) and an assistant manager (elsewhere 
referred to as the assistant sales manager), with two subordinate sales associates and another 
subordinate responsible for "packing." It also submitted an "employee list" indicating that only the 
Beneficiary and the office service manager worked full-time, while the assistant sales manager, sales 
associates, and packing employee all worked part-time. The Petitioner contends that we should 
consider its October 2017 staffing and organizational structure due to the Beneficiary's delay in 
entering the country; or, in the alternative grant the Petitioner an additional one year period as a new 
office. 
The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows a new intended U.S. operation one year 
within the date of approval of the petition to support a managerial position. There is no provision in 
USCIS regulations allowing for an extension of this one-year period, nor is there a provision that 
would allow a petitioner to file more than one new office petition for the same beneficiary. If the 
business does not have the necessary staffing to sufficiently relieve the Beneficiary from performing 
operational and administrative tasks when the new office validity period expires, the Petitioner is 
ineligible for an extension. Therefore, the Petitioner's claim that we must consider hiring that 
occurred after the filing of the petition, and/or grant it an additional year as a new office, is not 
persuasive. 
As of the date of the petition, the Beneficiary had only two subordinates, a part-time "sales and 
marketing manager" who was later identified as a sales associate, and an office service manager, 
neither of who had subordinates of their own. As such, the Beneficiary did not qualify as a 
personnel manager based on his supervision of managerial or supervisory subordinates as of the date 
the petition was filed. 
The remaining question is whether the Beneficiary supervised professional subordinates at the time 
of filing. In determining whether a 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 U.S. 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." Here, the Petitioner did not submit 
evidence to substantiate that the Beneficiary's subordinates held bachelor's degrees. In fact, the 
record indicates that both subordinates were both college students at the time of filing. Further, the 
duties of these subordinates do not indicate that their positions required bachelor's degrees. For 
instance, the duties of the office services manager reflected that she was tasked with various 
administrative duties, while the "sales and marketing manager" performed duties largely consistent 
with a sales representative. The Petitioner did not describe in detail why these positions required 
bachelor's degrees. 
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Matter ofN-P-1- Inc 
Therefore, the Petitioner did not establish that the Beneficiary acted as a personnel manager 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). 
Further, even if we were to consider the Petitioner's staffing at the time of the RFE response, the 
record does not demonstrate that the Beneficiary acted as a personnel manager at that time. When it 
responded to the RFE in October 201 7, the Petitioner submitted a new organizational chart depicting 
six employees, including the Beneficiary, a manager responsible for administration, an assistant 
manager responsible for import/export, two sales associates, and a packing employee.4 However, 
the Petitioner submitted internal payroll documentation for the period from January 2017 through the 
end of October 2017 reflecting that it had paid wages to only the Beneficiary, the newly hired 
manager/office services manager, the former office services manager, and one part-time sales 
associate. Therefore, the Petitioner's own records do not corroborate the organizational chart 
provided in response to the RFE. Although the Petitioner submitted copies of resumes, employment 
agreements, and/or IRS Forms W-4 for its new staff, three claimed employees - the assistant 
manager, the packing employee, and one of the part-time sales associates - were not on the payroll at 
the time of the RFE response. 5 
The Petitioner did not submit evidence reflecting that the Beneficiary delegated duties to his claimed 
subordinates and there is no documentation demonstrating his asserted subordinates performing 
duties for the company. As discussed, the record includes substantial evidence of the Beneficiary 
performing most of the operational tasks of the business, including handling invoicing, soliciting 
clients, shipping and receiving goods, and arranging for the sale of goods at flea markets and malls. 
The Petitioner also did not demonstrate that any of the Beneficiary's asserted subordinates in 
October 2017 were professionals. As we have discussed, the Petitioner did not submit 
documentation to substantiate that he had subordinates with bachelor's degrees nor did it articulate 
why these positions require bachelor's degrees. Therefore, contrary to the Petitioner's assertions, it 
did not demonstrate that the Beneficiary oversaw managerial and professional subordinates at that 
time. 
Furthermore, the Petitioner did not establish that it had developed sufficiently to support its asserted 
organizational chart and to support the Beneficiary in a managerial capacity. Even if we consider 
the Petitioner's asserted finances as of the date of the RFE in October 2017, this reflects that the 
company had only earned $91,041.05 in revenue since January 2017 up to this time. The Petitioner 
4 The Petitioner's accompanying letter in response to the RFE referred to the same individuals by different job titles. 
Specifically, it identified the "manager" as "office service manager" and the assistant manager as "assistant sales 
manager." 
5 The Petitioner did submit an internal "employee performance review" for the "assistant sales manager" for the review 
period "I 0/13 - 10/19/2017 ." This document is insufficient to demonstrate that the Petitioner actually hired this 
individual with an October I, 2017, start date as claimed and that it employed him at the time of the RFE response. The 
Petitioner did not explain why this employee did not appear on its payroll in October 2017. 
Matter of N-P-1- Inc 
states that Beneficiary's salary is $60,000 and that it would pay $90,000 in salaries to its five other 
asserted employees. Based on its current operations, it is not clear how it would maintain its claimed 
organizational chart. In fact, the Petitioner submitted an email from the Beneficiary to a leasing 
representative at a mall in late September 2017 in which the leasing representative provides 
information on leasing a small kiosk in a mall to sell its goods; however, the Beneficiary responded 
that he would get back to the leasing representative when "the company is more stable." Otherwise, 
the Petitioner provides little detail as to its current financial status and the evidence discussed above 
leaves question as to whether it has developed sufficiently to support the Beneficiary in a managerial 
capacity. 
Finally, we will address the Petitioner's claim that the Beneficiary is eligible to "recapture" the time 
he spent outside of the United States during the validity of his previously approved L-1 A petition. 
Specifically, the Petitioner requests that the Beneficiary be allowed to recapture time he spent in 
South Korea awaiting issuance of his L-1 visa. 
However, the Beneficiary is not eligible to recapture time spent outside the United States during the 
validity of his previously approved petition. Section 214(c)(2)(D) of the Act states that the period 
of authorized admission for an L-1 nonimmigrant admitted to render services in a managerial or 
executive capacity shall not exceed seven years. See also 8 C.F .R. § 214.2(1)(15)(ii). While it is true 
that only time spent physically present in the United States shall be counted towards the seven-year 
maximum period of admission, the Petitioner may not seek to recapture the time spent outside the 
United States in an extension proceeding. Rather, the Petitioner may request that any full days spent 
outside the United States during the period of petition validity be added back to the Beneficiary's 
total maximum period of stay, such that the Beneficiary, if otherwise eligible for L-lA classification, 
would be able to receive extensions beyond a seventh year. There are no regulatory or statutory 
provisions that would allow for reissuance of an approval notice for a prior petition for the purpose 
of recapturing days spent outside the United States during the validity of that specific petition. 
The Petitioner points to a memorandum issued in 2005 by then Acting Associate Director for 
Domestic Operations of USC IS as a basis for its asserted recapture. See Memorandum from Michael 
Aytes, Acting Associate Director for Domestic Operations, USCIS, HQPRD 70/6.2.8, Procedures 
for Calculating Maximum Period of Stay Regarding the Limitations on Admission for H-1 B and L-1 
Nonimmigrants (Oct. 21, 2005). However, we note that the referenced memorandum states 
explicitly that it was "intended for training a guidance of USCIS personnel" and was "not intended 
to ... and may not be relied upon to create any relied upon to create any right or benefit." Further, 
the memorandum supports our interpretation of the regulatory provisions as discussed above. As 
such, the Petitioner's citation to the Aytes Memorandum as a basis for recapturing time the 
Beneficiary spent outside the United States during the validity of his previous L-lA petition is not 
persuasive. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would act in 
a managerial under the extended petition. 
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Matter of N-P-1- Inc 
III. CONCLUSION 
The appeal must be dismissed because the Petitioner has not established that the Beneficiary would 
be employed in a managerial capacity under the extended petition. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-P-1-Inc, ID# 1277746 (AAO Aug. 29, 2018) 
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