dismissed L-1A Case: Photopurification Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 16, 2024 In Re: 31111965 
Appeal of Texas Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA Manager or Executive) 
The Petitioner, a designer and manufacturer of proprietary systems for liquid photopurification 
technology, seeks to extend the temporary employment of the Beneficiary as its chief financial officer 
(CFO) under the L-lA nonimmigrant classification for intracompany transferees. See Immigration and 
Nationality Act (the Act) section 101(a)(15)(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 Texas Service Center denied the petition, concluding the record did not establish 
that the Beneficiary would be employed in the United States in a managerial or executive capacity. 
The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo 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 capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 101(a)(15)(L) of the Act. In addition, the beneficiary must 
seek to enter the United States temporarily to continue rendering their services to the same employer 
or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. The petitioner must also 
establish that the beneficiary's prior education, training, and employment qualify them to perfonn the 
intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE OR MANAGERIAL CAPACITY 
The primary issue to be addressed is whether the Petitioner established that the Beneficiary will be 
employed in an executive or managerial capacity in the United States. On appeal, the Petitioner asserts 
that the Beneficiary will be employed in an executive capacity and will also serve as a function 
manager. We will address both assertions below. 
A. Executive Capacity 
"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. 
To be eligible for L-1 A nonimmigrant visa classification as an executive, the Petitioner must show 
that the Beneficiary will perform the high-level responsibilities set forth in the statutory definition at 
section 10l(a)(44)(B)(i)-(iv) of the Act. If the record does not establish that the offered position meets 
all four of these elements, we cannot conclude that it is a qualifying executive position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary will be primarily engaged in 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). In determining whether a given beneficiary's 
duties will be primarily executive, we consider the petitioner's description of the job duties, the 
company's organizational structure, the duties of a beneficiary's subordinate employees, the presence 
of other employees to relieve the 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 and its staffing levels. 
l. Duties 
The Petitioner stated that it "designs, manufacturers, markets, sells or licenses and maintains its 
proprietary I I systems for innovative liquid photo purification technology." The Petitioner 
claimed that due to hardships resulting from the Coronavirus pandemic, the Petitioner's operations 
suffered between 2020-2022, but due to the innovative nature of the company and interest from 
prospective clients, the company is moving forward. As a result of these setbacks the Petitioner 
claimed that in addition to his role as the company's CFO, the Beneficiary "will direct and oversee the 
resurrection and expansion ofbusiness activities in the U.S. in two phases." Specifically, the Petitioner 
explained that "Phase 1 will be to remedy all delinquent business and tax filings, while Phase 2 will 
see the expansion of the Petitioner's products into the United States." 
The Beneficiary's duties were described in further detail as follows: 
Phase 1 Duties: 
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40% Filings Remediation Management - hire US attorneys, accountants and tax 
specialists, create remediation plan, oversee implementation plan, directly 
manage providers and manage all internal needs related to filings; 
20% Raise Capital - develop strategy, pricing, terms and negotiate with potential 
funding partners[;] 
7.5% Corporate Governance - board meetings, review of reporting and directorate 
role across all entities; 
12.5% Financials and Reporting - entity financials and reporting in conjunction with 
country fiduciaries, and all interaction with US entities professional service 
providers; 
l 0% Management of Engineering, Microbiology, Biochemistry, Novel Food, and 
Brewing Technical Teams - creating targets and supervising teams to hit set 
mandates; 
5% Management of Administrative and Logistics Including Distribution, Suppliers 
and Customers; 
5% Research, Analysis, Organizational support planning related to US expansion -
research and meet with potential research and development partners, 
manufacturing and logistic partners, and customers, and create all internal 
systems for US operations, namely administrative, accounting, tolling center 
and reporting. 
As remediation is completed, the Beneficiary will transition to Phase 2 focusing more 
of his energies toward growth and expansion. Some of his duties will be: 
12.5% Financials and Reporting - entity financials and reporting in conjunction with 
country fiduciaries, and all interaction with US entities professional service 
providers; 
7.5% Corporate Governance - board meetings, review of reporting and directorate 
role across all entities; 
10% Management of Engineering, Microbiology, Biochemistry, Novel Food, and 
Brewing Technical Teams - creating targets and supervising teams to hit set 
mandates; 
10% Raise Capital - develop strategy, pricing, terms and negotiate with potential 
funding partners to ensure adequate after initial raise; 
5% Management of Administrative and Logistics - supervise administrative and 
logistical issues; 
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5% Distributor Management and Supplier Interaction - supervise distributor 
network and related customer issue solutions and source and contract with 
suppliers in conjunction with engineering needs/team; 
5% Customer Interaction - Key account and strategic interaction with customers to 
develop market and conclude contracts; 
10% Filings Remediation Management - Ensure filings are completed, implement 
and oversee plan to keep filings up to date moving forward; 
l 0% Set Up and Manage Research and Development Facility in the US; 
10% Set Up and Manage US Tolling Center; 
l 0% Set Up and Manage US Manufacturing Partners; 
5% Manage US Administrative, Accounting, and Reporting[.] 
The Director issued a request for evidence (RFE), noting that the description of duties and supporting 
evidence initially submitted was insufficient to establish that the Beneficiary would be employed in a 
primarily executive capacity. Noting that the duty description lacked sufficient detail and the record 
was insufficient to show that the Petitioner had sufficient organizational structure to support the 
Beneficiary in an executive position, the Director requested additional information clarifying the 
nature of the Beneficiary's duties and his role in the company's organizational structure. In response, 
the Petitioner submitted letters providing an overview of the Beneficiary's position and restating the 
initial list of duties, as well as copies of his email correspondence and other company documentation. 
In denying the petition, the Director determined that the Petitioner's description of the Beneficiary's 
duties was insufficient, noting that the duties as stated included non-qualifying tasks such as 
administrative and technical functions and therefore did not establish that Beneficiary's duties would 
be primarily executive. On appeal, the Petitioner again resubmits it description of the Beneficiary 
duties, asserting that the duty description is sufficient as it meets and exceeds the preponderance of 
the evidence standard and demonstrates the Beneficiary's performance of primarily executive duties. 
For the reasons outlined below, the Petitioner did not demonstrate that the Beneficiary's role will be 
primarily executive in nature, as the job description the Petitioner offered contains generalities that 
preclude a meaningful assessment of the Beneficiary's actual tasks in the course of the Petitioner's 
daily operations. 
Whether the Beneficiary is an executive employee turns on whether the Petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See sections 10l(a)(44)(B) of the Act. 
We agree with the Director that the Petitioner did not establish that the Beneficiary would be employed 
in an executive capacity in the United States. The Petitioner provided broad statements both initially 
and in response to the RFE that do not meaningfully describe what the Beneficiary will be doing on a 
daily basis. Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature, otherwise meeting the definitions would simply be a matter of 
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reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
affd, 905 F.2d 41 (2d. Cir. 1990). 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. Id. Here, although the Petitioner provided the percentage of time the Beneficiary 
would devote to each of his duties in both phases of development, the Petitioner listed the 
Beneficiary's duties as including both executive duties and technical and administrative tasks. For 
example, in addition to claiming that the Beneficiary will oversee daily operations and manage 
organizational goals, the Petitioner also states that the Beneficiary will be responsible for 
administrative and technical tasks such as raising capital, conducting research, and customer 
interaction. 
Additionally, many of the Beneficiary's assigned duties do not provide a meaningful understanding of 
how the Beneficiary will actually spend his time. For example, proposed duties contained in his 
finance and accounting responsibilities include remedying delinquent business and tax filings, and 
hiring attorneys, accountants, and tax specialists to assist in this area. These duties are overly broad 
and do not indicate what the Beneficiary will actually be doing. The actual duties themselves will 
reveal the true nature of the employment. F edin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Although it appears that the Beneficiary, as the U.S. entity's CFO, is responsible for establishing 
company goals and overseeing the company's "resurrection" and expansion, the fact that the 
Beneficiary will manage or direct a component of a business does not necessarily establish eligibility 
for classification as an intracompany transferee in an executive capacity within the meaning of section 
lOl ( a)( 44)(B) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" executive in nature. Section 10l(A)(44)(B) of the Act. While the Beneficiary 
may exercise discretion over the U.S. entity's daily operations and possesses decision-making 
authority regarding its business expansion, the position description does not establish that his 
day-to-day duties would be primarily executive in nature. 
2. Staffing and Organizational Structure 
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. 
The Petitioner claims that it was established in 2005 and had one employee at the time of filing, the 
Beneficiary. The Petitioner indicated in its initial letter of support that it intends to hire additional 
employees and independent consultants and contractors at the end of 2023. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of an organization or major component or function thereof. Section 101(a)(44)(B) 
of the Act. To show that a beneficiary will "direct the management" of an organization or a major 
component or function of that organization, a petitioner must show how the organization, major 
component, or function is managed and demonstrate that the beneficiary primarily focuses on its broad 
goals and policies, rather than on its day-to-day operations. An individual will not be deemed an 
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executive under the statute simply because they have an executive title or because they "direct" the 
organization as the owner or sole managerial or executive employee. 
In denying the petition, the Director determined that the Petitioner's organizational strncture was 
insufficient to relieve the Beneficiary from performing non-qualifying day-to-day duties, and we agree 
with that determination. 
U.S. Citizenship and immigration Services (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. Here, while the Petitioner claims that the Beneficiary 
has been and will continue to be employed in a primarily executive capacity, it does not explain how 
the Beneficiary would be relieved from performing non-qualifying duties at the time of filing without 
subordinate employees to support him. Considered in its totality, the evidence does not support a 
determination that the Beneficiary's duties are primarily executive in nature. Accordingly, the 
Petitioner has not established that the Beneficiary would be employed in the United States in an 
executive capacity under the extended petition as defined at section 101(a)(44)(B) of the Act. 
B. Function Manager 
The Petitioner also asserts that the Beneficiary will be a function manager. 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. 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 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 10l(a)(44)(A)(ii) of the Act. On appeal, the Petitioner asserts that while he will hold an 
executive position, the Beneficiary will be employed primarily as a function manager. The Petitioner 
argues that the Director did not conduct a sufficient analysis on the essential functions managed by 
the Beneficiary and did not afford sufficient evidentiary weight to its supporting documentation and 
support letters. 
If, as here, 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 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 ofG- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). The Petitioner asserts 
on appeal that, similar to the beneficiary in Matter of G-, the Beneficiary here will have executive 
responsibility for the finance and overall business development functions of the Petitioner. 
The fact that a petitioner is small and relies on contractors to perform certain day-to-day duties does 
not prohibit a finding that it can support a managerial position. Further, performing non-qualifying 
tasks necessary to produce a product or service will not automatically disqualify a beneficiary as long 
as those tasks are only incidental to their primary duties. However, a petitioner still has the burden of 
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establishing that a beneficiary will "primarily" perform managerial duties. See section 10l(a)(44) of 
the Act. Whether a beneficiary is a "function" manager turns in part on whether the Petitioner has 
sustained its burden of proving that their duties are "primarily" managerial. See Matter ofZ-A-, Inc., 
Adopted Decision 2016-02 (AAO Apr. 14, 2016). 
Here, while the record establishes that the Beneficiary, as the Petitioner's sole employee, has the 
appropriate level of authority over the company and its essential functions, the record does not 
sufficiently describe his actual duties and the proportion of those that are managerial in nature. The 
Petitioner asserts that the Beneficiary has "control over independent teams, professionals, consultants, 
and groups performing essential functions on behalf of [the Petitioner] as demonstrated in the 
organizational chart submitted in response to the RFE." Although the information provided on appeal 
provides a clearer picture of how the company's functions will be performed without in-house staff, 
the record does not sufficiently demonstrate that all or most non-qualifying activities have been 
contracted out. Though the Petitioner claims on appeal that it utilizes key independent consulting 
firms and external teams to perform the day-to-tasks associated with these functions, including 
I lthe record does not adequately document the 
availability of these contractors to relieve the Beneficiary from involvement in certain non-managerial 
tasks necessary for the operation of the business, particularly office operations, sales and marketing, 
research and development, engineering and manufacturing, microbiology, and brewing. In fact, the 
Petitioner specifically stated in its initial letter of support that it would begin hiring employees and 
independent contractors at the end of 2023 as it "resurrected" its operations, suggesting the claimed 
organizational structure upon which it relies on appeal was not in existence when the petition was 
filed. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A 
visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible 
under a new set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). 
The Petitioner also cites Matter of Z-A-, Inc. in support of its assertion that we must consider the 
Beneficiary's role within the wider qualifying international organization. In Matter ofZ-A-, however, 
the petitioner submitted "substantial evidence relating to the support provided by the overseas staff," 
and "[t]he record amply substantiate[ d] the existence of the foreign staff and the nature of and need 
for the services they provide to the Petitioner and the organization as a whole." Id. The Petitioner 
here has not documented the existence of its purported foreign staff or foreign consultants or asserted 
that such workers would support the Beneficiary's efforts in the United States. 1 
Finally, the Petitioner refers to several unpublished decisions, including Matter ofIrish Dairy Board, 
in which we determined that the beneficiary met the requirements of serving in a managerial and 
executive capacity for L-1 classification even though he was the sole employee. The Petitioner has 
furnished no evidence to establish that the facts of the instant petition are analogous to those in the 
unpublished decisions. While 8 C.F.R. § 103.3(c) provides that our precedent decisions are binding 
1 We acknowledge the submission of consulting agreements and documents that pre-date the filing of the petition. some 
of which date back to 2015 and 2016. While these documents demonstrate that the Petitioner previously contracted the 
services of foreign consultants, there is no indication that the Beneficiary was receiving support from these consultants at 
the time the petition was filed. Moreover, we note the Petitioner's assertion in its initial supporting statement that due to 
pandemic hardships, the Petitioner suffered setbacks through 2022 and intended to hire employees and consultants at the 
end of 2023 as it "resurrected" its business. The petitioner is obligated to clarify such inconsistent and conflicting 
testimony by independent and objective evidence. Matter ofHo, 19 l&N Dec. 582, 591-92 (BIA 1988). 
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on all USCIS employees in the administration of the Act, unpublished decisions are not similarly 
binding. 
For these reasons, the Petitioner has not established that it would employ the Beneficiary in a 
managerial capacity as a function manager under the extended petition. 
III. DEFERENCE 
Lastly, in matters involving an extension request to a previously approved petition, USCIS, where 
appropriate, defers to its prior decision when the extension request is filed by the same parties and for 
the same position in the same nonimmigrant classification. See generally 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/202 l 0427-
Deference. pdf. 
Although the matter at hand involves an extension request that was filed by the same Petitioner on 
behalf of the same Beneficiary, the record contains new information, specifically the Petitioner's 
diminished staffing and reduced business operations. The new information indicates a change in 
circumstances that may alter the Beneficiary's job duties and nature of his proposed position. We 
further note that USCIS is not bound to approve subsequent petitions where eligibility has not been 
demonstrated strictly because of a prior approval. Id. 
IV. CONCLUSION 
For the reasons discussed above, the Petitioner has not established by a preponderance of the evidence 
that it would employ the Beneficiary in a primarily managerial or executive capacity. 
ORDER: The appeal is dismissed. 
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