dismissed L-1A Case: Plastics Wholesale

U.S. Citizenship 
and Immigration 
Services 
In Re: 10875565 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 10, 2022 
The Petitioner seeks to continue the Beneficiary's temporary employment as its CEO under the L-lA 
nonimmigrant classification for intracompany transferees.1 See section 10l(a)(l5)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § l 10l(a)(l5)(L). The L-lA classification allows 
a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign 
employee to the United States to work temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition, concluding that the Petitioner 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. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
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, or in a position requiring 
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). The prospective U.S. 
employer must also be a qualifying organization that seeks to employ a beneficiary in a managerial or 
executive capacity. 8 C.F.R. § 214.2(1)(3)(i). 
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 
1 The Petitioner previously filed a "new office" petition on the Beneficiary 's behalf which was approved for the period 
November 16, 2018, until November 15, 2019. 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)( I )(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. 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 8 C.F.R. 
§ 214.2(1)(14)(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. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The sole issue to be addressed is whether the Petitioner provided sufficient evidence establishing that 
the Beneficiary's position with the U.S. entity would be in a managerial capacity. The Petitioner does 
not assert that the Beneficiary would be employed in the United States in an executive capacity. 
To be eligible for L-lA nonimmigrant visa classification as a manager, the Petitioner must show that 
the Beneficiary will perform the high-level responsibilities set forth in the statutory definition at 
section 101(a)(44)(A)(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 managerial position. Here, upon 
review of the evidence and the materials submitted on appeal, the Petitioner has established by a 
preponderance of the evidence that the Beneficiary will perform the high-level responsibilities set 
forth in the statutory definition at section 101(a)(44)(A)(i)-(iv) of the Act. 
Although the Petitioner has established that the offered position meets all elements set forth in the 
statutory definition, the Petitioner must also 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). In determining whether 
a given beneficiary's duties will be primarily managerial, 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 
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beneficiary's actual duties and role in a business. Here, the Petitioner has not established that the 
Beneficiary will be primarily engaged in managerial duties under the extended petition. 
A. Staffing and Organization Structure 
First, we will address the U.S. company's staffing at the time of filing. If staffing levels are used as a 
factor in determining whether an individual is acting in an executive capacity, the reasonable needs of 
the organization must be considered in light of the overall purpose and stage of development of the 
organization. See section 10l(a)(44)(C) of the Act. As noted, the U.S. company was established as a 
new office and its prior petition was approved for one year, with a validity period that ended on 
November 15, 2019. The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation 
one year from the date of approval of the petition to support an executive or managerial position. 
The extension petition, which was filed on November 12, 2019, indicates that the Petitioner imports 
and wholesales plastics products. At the time of filing, the Petitioner claimed six employees. 2 It 
provided its organizational chart listing nine positions, of which three were indicated as vacant. The 
organizational chart shows the Beneficiary at the top of the hierarchy overseeing a wholesale manager, 
an e-commerce manager, and an administrative manager. The wholesale manager is depicted as 
overseeing two wholesale specialists, one of which is vacant; the e-commerce manager is depicted as 
overseeing two e-commerce specialists, one of which is vacant; and the administrative manager is 
shown as overseeing the vacant office assistant position. A business plan submitted with the petition 
indicates that the Petitioner also plans to add a logistics manager and logistics specialist to its 
organizational hierarchy. 
In the RFE, the Director instructed the Petitioner to provide additional information about the 
Petitioner's organizational structure and staffing. She noted staffing inconsistencies between the 
Petitioner's organizational chart and its employment tax return. In response to the RFE, the Petitioner 
reiterated the original claim that the Beneficiary would be employed in a managerial capacity, and that 
the Beneficiary would oversee three subordinates including a wholesale manager, an e-commerce 
manager, and an administrative manager. It submitted its quarterly federal tax returns, payroll reports, 
and IRS Forms W-2, Wage and Tax Statements, for 2019 and indicated that while its payroll fluctuated 
in 2019, it had six employees on its payroll at the end of the third quarter. 
In her denial decision, the Director highlighted the fluctuations in the Petitioner's payroll since the 
initial filing, and questioned whether the Petitioner had six employees at the time of filing the 
extension petition. On appeal, the Petitioner has sufficiently explained the changes in its payroll in 
2019. Although it only had four employees at the start of July, it hired two employees in September 
2019, bringing its total to six. The submitted tax and payroll documentation supports this explanation. 
The Petitioner has overcome the discrepancies in the record regard the number of employees it had as 
of the date of filing. However, additional deficiencies in the record remain. 
In the denial decision, the Director noted that the Petitioner's initial business plan submitted with its 
new office petition on behalf of the Beneficiary in 2018 indicated that the Beneficiary would supervise 
2 The Petitioner provided its quarterly wage reports for the first three quarters of 2019. The quarterly wage report for the 
third quarter of2019 lists six employees, corroborating the Petitioner's claims about its staffing as of the date of filing. 
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nine employees. On appeal, the Petitioner rejected the Director's assertion that it initially planned to 
hire nine employees to be overseen by the Beneficiary. Instead, it quoted its response to an RFE in 
that case stating that it expected to have a "at least" six employees, including the Beneficiary. The 
Petitioner submitted a copy of its RFE response which supports its assertion. However, the staff 
identified in the initial petition differs significantly from the staff identified in the extension petition. 
Specifically, the initial staff detailed in the initial petition included the Beneficiary as CEO; one sales 
manager; one logistics manager; one administrative manager; one sales representative; and one 
bookkeeper. It also stated that it expected to hire one logistics representative and one sales 
representative within the first year of its operations. As noted above, the extension petition lists the 
following staff: the Beneficiary as CEO; a wholesale manager; an e-commerce manager; an 
administrative manager; two wholesale specialists ( one of which is vacant); two e-commerce 
specialists (one of which is vacant); and an office assistant (which is vacant). A business plan 
submitted with the petition indicates that the Petitioner also plans to add a logistics manager and 
logistics specialist to its organizational hierarchy. In her denial decision, the Director also noted 
discrepancies in the job descriptions of the employees in the record, as well as discrepancies regarding 
who they report to and who they supervise. She concluded that the Petitioner had not established that 
it had an organizational structure sufficient to support a managerial or executive position. 
On appeal, the Petitioner asserts that the estimation of personnel in the new office petition was always 
subject to adjustment to meet the demands that arose in business reality. It states that due to the 
"unexpected trade war," it had to change its hiring plan, but that its current hiring plan still falls within 
the one initially submitted with the new office petition. The Petitioner cites Mars Jewelers, Inc. v. 
INS, 702 F. Supp. 1570, 1574 (N.D. Ga. 1988) to stand for the proposition that the small size of a 
petitioner will not, by itself, undermine a finding that a beneficiary will act primarily in a managerial 
or executive capacity. However, the Petitioner has not furnished evidence to establish that the facts 
of the instant petition are analogous to those in Mars Jewelers, Inc., where the district court found in 
favor of the plaintiff. 3 In Mars Jewelers, Inc., the court emphasized that the former Immigration and 
Naturalization Service should not place undue emphasis on the size of a petitioner's business 
operations when reviewing managerial or executive capacity. We have long interpreted the 
regulations and statute to prohibit discrimination against small or medium-size businesses. However, 
consistent with the statute, the Petitioner is required to establish that the Beneficiary's position consists 
of primarily managerial or executive duties and that it will have sufficient personnel to relieve the 
Beneficiary from performing operational and/or administrative tasks. Our holding is based on the 
conclusion that the Beneficiary is not primarily performing managerial duties and does not have 
sufficient personnel to relieve the Beneficiary from performing operational and/or administrative 
tasks. Our holding does not rest on the size of the Petitioner. 
The Petitioner also asserts on appeal that the administrative manager will be a supervisory employee 
in the next two years, and that the fact that the Petitioner is still in its initial stage of development 
should be considered. However, the regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows the 
intended U.S. operation one year within the date of approval of the petition to support an executive or 
3 We are not bound to follow the published decision of a U.S. district court in matters arising within the same district. 
Matter of K-S-, 20 l&N Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's decision will be given 
due consideration when it is properly before us, the analysis does not have to be followed as a matter oflaw. Id. at 719. 
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managerial position. There is no provision in U.S. Citizenship and Immigration Services (USCIS) 
regulations allowing for an extension of this one-year period. If the business does not have the 
necessary staffing after one year to sufficiently relieve the Beneficiary from performing operational 
and administrative tasks, the Petitioner is ineligible for an extension. 
The record does not demonstrate that the Petitioner has sufficient staffing to relieve the Beneficiary 
from performing operational and administrative tasks. While the Petitioner has demonstrated that it 
employs a few individuals to carry out some of the operational functions of the company, it has not 
established how they relieve the Beneficiary from performing the day-to-day activities of the U.S. 
company or otherwise support a position in which her actual duties would be primarily managerial in 
nature. Specifically, the Petitioner's organizational chart identifies three unfilled positions, including 
a wholesale specialist, an e-commerce specialist, and an office assistant. The record is not clear 
whether other employees were performing the duties of these positions at the time of filing, including 
the Beneficiary. Given that wholesaling and e-commerce are essential aspects of the Petitioner's 
business, the Petitioner would necessarily require support in these areas. The Petitioner also indicated 
an intention to hire a logistics manager and logistics specialist to its organizational hierarchy, but it is 
unclear whether other employees were performing the duties of these positions at the time of filing, 
including the Beneficiary. The Petitioner states that it had originally planned to rent its own warehouse 
and thus the employees would have duties related to inventory management but, "given the unexpected 
trade war," the Petitioner postponed its plan to rent a warehouse and is outsourcing inventory to a 
third-party logistics service provider. The Petitioner also asserts that the discrepancies in the job duty 
descriptions are due to the "stage of development" of the Petitioner's business. It again states that the 
personnel changes were made due to "business reality." The Petitioner, however, has provided no 
evidence tying the "trade war" to the change in its business activities. The burden of proof is on the 
Petitioner in the current matter. Section 291 of the Act, 8 U.S.C. § 1361. Thus, the record does not 
credibly demonstrate that the Petitioner has the necessary staffing after one year to sufficiently relieve 
the Beneficiary from performing operational and administrative tasks. See 8 C.F.R. § 
214.2(1)(3)(v)(C). 
Although the Petitioner focuses on the Beneficiary's top placement with the U.S. organization and her 
authority over management staff, it does not clarify how the vacancies in several positions will affect 
the Petitioner's operation and its ability to support the Beneficiary in a managerial capacity. 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). 
As noted above, the Director also noted discrepancies in the job descriptions of the employees in the 
record, as well as discrepancies regarding who they report to and who they supervise. The Petitioner 
must resolve the inconsistencies described above with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The Petitioner has not done 
so here. Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency 
of other evidence submitted in support of the requested immigration benefit. Id. 
In sum, the regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows the "new office" operation one year 
within the date of approval of the petition to support an executive or managerial position. If a business 
does not have the necessary staffing after one year to sufficiently relieve the beneficiary from 
performing operational and administrative tasks, the petitioner is ineligible for an extension. Here, 
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although the organizational chart suggests that a subordinate staff is available to perform some of the 
non-qualifying operational duties, the Petitioner has not explained how the yet-to-be-hired staff's 
duties have been delegated to existing employees. 
B. Job Duties 
In a supporting statement submitted with the petition, the Petitioner offered a job duty breakdown 
indicating that the Beneficiary has been, and will continue to: 
• Manage the entire company's business operations (40% of time). 
o Establish sales goals and marketing objectives. 
o Direct the financial budgets of the company's operations. 
o Establish the company's business operations policies, procedures, and guidelines for 
the business operations, including price policies, discounts, client maintenance, etc. 
o Direct the localization and maintenance of the online platform and web-based sales 
operations. 
• Supervise the managers and professionals of the company (50% of time). 
o Direct wholesale manager to develop promotion and marketing strategy. 
o Oversee e-commerce department. 
o Preside at meetings with subordinate managers to discuss business performance. 
o Appraise the work performance of subordinates. 
o Make personnel decisions including hiring, promotions, and discipline. 
o Plan and supervise hiring and employee training. 
o Make decisions on employee compensation and bonus. 
• Other discretionary decision-making (10% of time). 
o Represent the company in trade shows and exhibitions to develop new marketing 
channels. 
o Report the U.S. company's development and business performance to the Chinese 
parent company. 
The Director issued a request for evidence (RFE) instructing the Petitioner to clearly identify (a) the 
Beneficiary's duties the prior year, and (b) the duties that the Beneficiary will perform under the 
extended petition. In response to the RFE, the Petitioner offered a revised job duty breakdown 
indicating that the Beneficiary will: 
• Direct the study of the U.S. market to identify potential target markets and business 
opportunities; devise the company's development strategy and business plan (10%). 
• Establish the company's internal management policies, including employment policies, salary 
standards, employee rewards, and commission policies (10%). 
• Make decisions on hiring, firing, promotion, vacation, and other personnel decisions on 
subordinate managerial employees (10%). 
• Set hiring standards and procedures for hiring other subordinate employees and direct training 
plans of the new employees; personally interview job candidates and sign offer letters (10%). 
• Establish business procedures including preparation of periodic financial reports to monitor 
the company's business performance (10%). 
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• Oversee and appraise the performance of the subordinate managers by meeting with them 
regularly, and reviewing their work reports and business performance (20%). 
• Direct the plan and make final decision on the company's financial budget, marketing, 
promotion events, pricing policies and other important business decisions (20%) 
• Make other important business decisions, including the plan of renting a warehouse based on 
business needs, the geographical factors, logistics expenses, and other relevant business 
considerations ( 10% ). 4 
In response to the RFE, the Petitioner also provided sample company documents related to the 
Beneficiary's duties in the company, including work instructions made by the Beneficiary to her 
subordinates; work reports delivered to the Beneficiary; an employee handbook signed by the 
Beneficiary; and an employment offer extended by the Beneficiary. After reviewing the evidence, the 
Director denied the petition, finding that the record did not adequately establish what the Beneficiary 
would be doing on a day-to-day basis. Specifics are clearly an important indication of whether a 
beneficiary's duties involve specialized knowledge, otherwise meeting the definitions would simply 
be a matter ofreiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). She also noted repetitious and overlapping duties in the 
Beneficiary's job description that prevented a clear understanding of whether she would be performing 
primarily managerial duties. 
On appeal, the Petitioner asserts that the Director erroneously analyzed the Beneficiary's job duties 
by overstating the repetition that was present in the job duty description. While the Director's decision 
includes some erroneous references to the Beneficiary's job duties, the error does not ultimately affect 
the outcome of the appeal because the Petitioner has not provided a clear understanding of whether 
the Beneficiary would be performing primarily managerial duties. For example, the Petitioner 
acknowledges on appeal that the Beneficiary's job description includes repetitive duties related to 
human resources and personnel actions. These include making decisions on hiring, firing, promotion, 
vacation, and other personnel decisions on subordinate managerial employees; setting hiring standards 
and procedures for hiring other subordinate employees and direct training plans of the new employees; 
personally interviewing job candidates and signing offer letters; overseeing and appraising the 
performance of the subordinate managers; and establishing the company's employment policies, 
salary standards, and employee rewards. The Director noted in her decision that the Petitioner did not 
provide sufficient details about these duties or clarify at what frequency they are performed, and it has 
not done so on appeal. 
4 The purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit sought has been 
established. 8 C.F.R. § 103.2(b )(8). When responding to an RFE, a petitioner cannot offer a new position to a beneficiary, 
or materially change a position's title, its level of authority within the organizational hierarchy, or its associated job 
responsibilities. A petitioner must establish that the position offered to a beneficiary, when the petition was filed, merits 
classification as a managerial or executive position. See 8 C.F.R. § 103.2(b)(l). If significant changes are made to the 
initial request for approval, a petitioner must file a new petition rather than seek approval of a petition that is not supported 
by the facts in the record. The information provided by the Petitioner in its response to the Director's RFE did not clarify 
or provide more specificity to the original duties of the position, but rather added new generic duties to the job description. 
Therefore, the focus on our analysis will be based on the job description submitted with the initial petition. 
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Further, on appeal, the Petitioner asserts that the Beneficiary's duties related to establishing policies 
and procedures are not repetitive because they relate to different areas of her duties. The Beneficiary's 
duties related to establishing policies and procedures include devising the company's development 
strategy and business plan; establishing the company's internal management policies; setting hiring 
standards and procedures; establishing business procedures; and directing the plan on the company's 
financial budget, marketing, promotion events, and pricing policies. The Director noted in her 
decision that the Petitioner did not provide sufficient details about these duties or clarify at what 
frequency they are performed, and it has not done so on appeal. The Petitioner's unsupported 
statements are insufficient to carry its burden of proof, particularly when supporting documentary 
evidence would reasonably be available. The Petitioner must support its assertions with relevant, 
probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
The fact that the Beneficiary will manage or direct the business as its CEO does not necessarily 
establish eligibility for classification as an intracompany transferee in a 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" executive or managerial in nature. Sections 101 (A)( 44)(A) 
and (B) of the Act. While 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, 
the record does not establish that her actual duties will be primarily managerial in nature. The 
Petitioner has not established that the Beneficiary would be employed in the United States in a 
managerial capacity under the extended petition as defined at section 10l(a)(44)(A) of the Act. 
We note that while the appeal was pending, USCIS updated the USCIS Policy Manual's guidance 
regarding deference to prior approvals. 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 However, we do not defer to prior approvals where there has been a material change 
in circumstances or eligibility requirements. 2 USCIS Policy Manual, supra, at A.4(B)(l ). This 
includes situations in which the regulations require criteria to be met after approval, such as L-lA 
extension petitions for new offices detailed at 8 C.F.R. § 214.2(1)(3)(v)(C) (a new office has one year 
from the date of the initial approval to support an executive or managerial position). See 8 C.F .R. § 
214.2(1)(14)(ii) (a petitioner seeking to extend an L-1 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). 
Here, while we acknowledge the Director's prior approval of the Petitioner's new office petition, we 
will not defer to the prior approval because, as noted above, the record does not credibly demonstrate 
that the Petitioner has the necessary staffing after one year to sufficiently relieve the Beneficiary from 
performing operational and administrative tasks. We will therefore dismiss the appeal. 
ORDER: The appeal is dismissed. 
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