dismissed L-1A Case: Plumbing Products

U.S. Citizenship 
and Immigration 
Services 
MATTER OFT- fNC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY14,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a retailer and. wholesaler of plumbing and drainage system products, seeks to continue 
the Beneficiary's temporary employment as its president under the L-lA nonimmigrant classification 
for intracompany transferees 1 See Immigration and Nationality Act (the Act) section I 0 I (a)(l5)(L), 
8 U.S.C. § 1101(a)(l5)(L). The L-IA 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 revoked the approval of the petition, concluding that 
. the Petitioner did not establish, as required, that: (I) the Beneficiary would be employed in a 
managerial or executive capacity under the extended petition; and (2) the Beneficiary was employed 
by a qualifying entity abroad for at least one year in the three years preceding the filing of his initial 
L-1 A petition. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary met the one 
year of employment abroad requirement prior to entering the United States as a nonimmigrant in 
2012. The Petitioner further claims that the evidence establishes that the Beneficiary will manage an 
essential function for its international organization by developing the U.S. market. 
Upon de novo 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 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 10l(a)(15)(L) of the Act. In addition, the beneficiary 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
October 21, 2014, until October 20, 2015. 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(l)(l)(ii)(F). The 
regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new oftice" operation one year within the date of approval of the 
petition to support an"executive or managerial position. 
Malter ofT- Inc. 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. !d. 
A petitioner seeking to extend an L-1 A 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(l)(l4)(ii). This evidence must demonstrate that the beneficiary will be employed in 
a managerial or executive capacity, as defined at sections 101(a)(44)(A) and (B) of the Act, under 
the extended petition. 
Under U.S. Citizenship and Immigration Services (USCIS) regulations, the approval of an L-IA 
petition may be revoked on notice under six specific circumstances. 8 C.F.R. § 214.2(l)(9)(iii)(A). 
To properly revoke the approval of a petition, a director must issue a notice of intent to revoke that 
contains a detailed statement of the grounds for the revocation and the time period allowed for 
rebuttal. 8 C.F.R. § 2l4.2(l)(9)(iii)(B). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The first issue to be addressed is whether the Petitioner established that the Beneficiary will be 
employed in a managerial capacity in the United States. The Petitioner does not claim that the 
Beneficiary will be employed in an executive capacity. 
The Director revoked the approval of the petition on notice following an administrative site visit 
conducted by a USCIS officer in April 2016, approximately six months after the filing and approval 
of the petition. The Director determined that, while the business was operating, the Petitioner had 
not established that the Beneficiary primarily supervises the work of subordinate managers, 
supervisors or professionals, or that he acts as a function manager. On appeal, the Petitioner submits 
additional evidence in support of its claim that the Beneficiary primarily manages an essential 
function. 
"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 look to the petitioner's 
description ofthejob duties. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of the 
job duties, U.S. Citizenship and Immigration Services (USCIS) examines the company's 
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Maller ofT- inc. 
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 dutie s along with 
evidence of the nature of the Petitioner's business , its staffing levels , and its organizationa l structure. 
A. Duties 
The Petitioner provided a statement of the Beneficiary's duties at the time of filing: 
• Establish business policies, goals and plans according to the resolution s adopted 
by the board of directors of the parent company ( 15% ); 
• Fully manage the company, implementing all regulations and systems, reform 
solutions and measures of the US subsidiary (15% ); 
• Propose the organizational levels of the US·subsidiary , appointing and dismissing 
company employees; establish a healthy and unified working team (I 0%); 
• Put forward the business concept of the US Subsidiary , build the corporate 
culture, create an excellent working environment , cultivate a sense of belonging s 
[sic] for employees (20%); 
• Responsible for 
coordinating works of each department ( 10% ); 
• Responsible for selecting and identifying the company's investment projects, 
review the subsidiary's operating expenses (10%); 
• Responsible for properly allocating the company's resource s (15%); and 
• Overall 
management of the subsidiary 's other affairs (5%). 
This broad description of the Beneficiary's duties did not convey what he would be doing on a day­
to-day basis as the Petitioner's president. The Petitioner did not provide any concrete examples of 
policies, strategies, or goals the Beneficiary would develop and implement in support of its claim 
that he would spend his time primarily focused on higher-level planning and decision-making 
responsibilities. In fact, many of the duties· simply paraphrase the statutory definition of executive 
capacity. Reciting the 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. 
The Petitioner has not provided any detail or explanation of the Beneficiary's activities in the course 
of his daily routine. The actual duties themselves will reveal the true nature of the employment. 
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). 
Nevertheless , the Director initially approved the petition based on this broad description of the 
Beneficiary's duties and an organizational chart depicting four employees subordinate to the 
Beneficiary. The Petitioner has not submitted a mC?re detailed breakdown of the Beneficiary's 
duties, either in response to the Director's notice of intent to revoke (NOIR), or on appeal. Instead, 
as discussed further below , the Petitioner now states that the Beneficiary has been primarily 
managing an essential function by overseeing the company's brand wholesale program," a 
responsibility that is not clearly reflected in the initial description 
stated above. 
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Maller ofT- Inc. 
The fact that the Beneficiary will manage a bu.siness as its senior employee does not necessarily 
establish eligibility for classification as an intracompany transferee in a managerial capacity within 
the meaning of section I 01 (a)( 44)(A) of the Act. Even though the Beneficiar y may exercise 
discretion over. the Petitioner 's day-to-day operations and possess the requisite level of authority 
with respect to discretionary decision-making, a broad overview of his responsibilities is insufficient 
to establish that his actual duties would 
be primarily managerial in nature as of the date of filing. 
B. Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS takes into account the reasonable need
s of the organization, in light of 
the overall purpose and stage of development of the organization. See section l0l(a)(44)(C) of the 
Act. 
The Petitioner operates a retail store known as According to a business 
plan dated 2015, the Petitioner was also pursuing the creation of its own 
brand of plumbing fittings . The Petitioner submitted evidence that it had a pending trademark 
application for this brand name at that time. The Petitioner stated that it had five employees in 
2015 and provided its organizational chart, which depicts the Beneficiary , a sales manager, 
a purchase department manager, a sales person, and a warehouse keeper, as well as ·an outsourced 
CPA firm. 
The statutory definition of "managerial capacity" allows for both "pe rsonnel managers" and 
" function managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Pers<?nnel 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." 2 · Section 10l(a)(44)(A)(iv) of the Act. If a benefic iary directly superv ises 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(1)(l)(ii)(B)(J). 
The Petitioner provided position descriptions for the Beneficiary's subordinates, but those 
descriptions did not indicate that the two employees with managerial job titles actually perform 
supervisory duties. In fact, the descriptions for the salesperson and warehouse worker indicated that 
both employees would take assignments from the president. In addition, the Petition er did not state 
that any of the subordinate positions require a bachelor's degree, such that the subordinates could be 
2 In evaluating whether a beneficiary manages professional employees, we must eva luate whether the su bordinate 
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 "profess ion" 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 I 0 I (a}(32} of the Act , states that "[t]he term profession 
shall includ e but not be limited to architects, engineers, lawyers , physician s, surgeons, and teacher s in elementary or 
secondary schools, colleges, academies, or seminaries ." 
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Matter ofT- Inc. 
deemed professionals. The evidence submitted at the time of filing did not establish that the 
Beneficiary would be primarily supervising subordinate managers, supervisors, or professionals as a 
personnel manager. 
Further, at the time of the USC IS site VISit m April 2016 , the Petitioner employed only two 
subordinate 
workers - the individuals identitied as the warehouse keeper and the salesperson. As 
noted by the Director, the Beneficiary stated during that site visit that "his supervisory role is 
directly overseeing the work of his two employees ." Further, as noted by the Director in the NOIR, 
the salesperson stated that the Beneficiary's role involves "working in the front of the store ... 
talking with customers, maintaining relationships of the company, planning improvem ents, and 
overseeing the operation of the plumbing supply business." Based on this information it appears 
that, while the Beneficiary was overseeing the business as a whole , he was also significantly 
involved in non-managerial duties associated with its day-to-day operation s. 
In its respon se to the NOIR, the Petitioner empha sized that it had experienced only a temporary 
reduction in staffing and submitted an updated organizational chart showing a sales department 
manager , logistics and purchase department manager , secretary, two salespeople, a driver, and 
outsourced service providers working for the company as of September 2017. Howe ver, tile payroll 
evidence in the record shows that the company employed only three workers (including the 
Beneficiary) for 
a considerable period of time. The Petitioner was without a sales manager between 
November 2015 and August 2016, and without a logistics and purchasing department manager from 
October 2015 until May 2016. A 50 percent reduction in staff is significant in a company with only 
four subordinates and the Petitioner did not explain how two lower-level staff were able to remove 
the Beneficiary from significant involvement in the day-to-day operations of the Petitioner's 
business at the time of the site visit. 
On appeal, the Petitioner shifts its claim away from a focus on the Beneficiary's supervision of 
personnel and claims that the Beneficiary has been primarily managing an essential function for the 
U.S. subsidiary. The. term "function manager" applies generall y 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 I 01 (a)(44)(A)(ii) of the Act. If 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 . ~ill primarily manage, as opposed to perform, the 
function; ( 4) the beneficiary will act at a senior level within the organizational hierarch y or with 
respect to the function managed ; and (5) the beneficiary will exercise discretion over the function's 
day-to-day operations." Malter ofG- Inc., Adopied Decision 2017-05 (AAO Nov. 8, 2017). 
Specifically, the Petitioner claims that the Beneficiary acted as a function· manager by managing the 
U.S. subsidiary, which is an essential function of the wider qualifying international organization. The 
Petitioner states that this role "primarily consists of managerial duties associated with development of 
the United States market " for the organization as a whole. More specifically, the Petitioner notes that 
the Beneficiary "managed the research and product development of its 
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Matter ofT- Inc. 
products, , implemented of all polici es and strategies and established 
goals pertaining to the import , sales and marketing of the parent company's 
plumbing products." 
In support of this claim, 'the Pe.titioner provides new organizational charts and states that 11 of the 
parent company 's employees have been supporting the Petitioner ' s "day-to-day opera tional needs ... 
with marketing and product research and development" as well as providing 
financial, and administrative support for duties related to production planning, technical support, sales, 
logistics and distribution for the U.S. market. " The Petitioner maintains that the Benefici ary did not 
mention his supervision of the C hinese staff at the time of the site visit because he was not aware of 
their relevance and the USCIS officer did not ask about oversea s staff. In addition, the Petitioner 
emphasizes that the "counter salesperson" interviewed during the site visit did not have full knowledge 
of the Beneficiary's respon sibilities, his supervision of the Chinese employees, the wholesale 
program, or the Chinese departments that support that program's efforts . The Petition er maintains that 
the Beneficiar y's responsibilit y- tor supervisingstaff in the Petitioner 's store at the time of the site visit 
was merely incidental to his primarily responsibilit y for managing the wholesale program. 
The Petitioner must establish that all eligibility ~equirements for the immigration ben efit have been 
satisfied from the time of the filing and continuing through adjudicati on. 8 C.F.R . § 103.2(b)( l). 
The Petitioner has provided a general time line of the evolution of its product prog ram, but has 
not shown how the Benefici ary primarily manag ed this program at the time this petiti on was filed in 
October 2015. First, the positi on description and organizational charts submitted at the time of tiling 
did not support a determination that the Beneficiary would be primarily mana ging a n esse ntial 
function and supervising a .staff of employees based in China under the extended petition. The 
Petitioner explained why the Beneficiary did not mention the foreign employees at the time of the 
site visit, but it has not explained why it did not mention the essential function or the foreign 
employees in the statements it made to US CIS in October 2015 .. 
At that time, the Petitioner briefly mentioned the products and provided evidence that it 
had applied for a trademark, but that was the extent of its claims regarding the program. The 
Petitioner indicates that it imported its first products in May 2016 . On appeal , the 
Petitioner provide s a summary of the duties the Beneficiary performed in relation to managing the 
program in 2016, but does not further elabor ate upon his dutie s at the time of filing to support a 
claim that he primarily acted as a function manager at that time. Therefore, although a company­
wide organizational chart · submitted on appeal shows that the Beneficia ry s uper vised a. tinancial 
manager , a sales manager , a production control manager, and various other staff based in China in 
2015 , there is insufficient evidence to corroborate that this structure was in place when this petition 
was filed . 
Further, even if the Beneficiary was performing duties related to the management and coordination 
of the products, the records still lacks a detailed description of the Benefici ary 's duties at 
the time of tiling and the amount of time he allocat ed to specific tasks. The Petitioner states that the 
salesperson interviewed at the time of the site v isit was unaware of the full range of the 
Beneficiary 's duties, but the fact remains that th~ Beneficiar y was spend ing some porti on of his time 
Mauer ofT- Inc. 
"working in the front of the store," "talking with customers," superv1smg non-professional 
employees, and likely performing other administrative and operational duties in the absence of a 
sales manager, a purchase manager, and administrative staff. 
While performing non-qualifying tasks will not automatically disqualify a beneficiary as long as 
those tasks are not the majority of a beneficiary's duties, a petitioner still has the burden of 
establishing that a beneficiary will "primarily" perform managerial or executive duties. See section 
l01(a)(44) of the Act. Whether a beneficiary is "function" manager turns in part on whether the 
Petitioner has sustained its burden of proving that their duties are "primarily" managerial. See 
Maller ofZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). Here, the Petitioner did not 
adequately document what proportion of the Beneficiary's duties would be managerial functions and 
what proportion would be non-managerial. Absent a clear and credible breakdown of the time spent 
by the Beneficiary performing specific tasks, we cannot determine what proportion of the duties 
would be managerial, nor whether the Beneficiary, as of the date of tiling, would be primarily 
performing the duties of a function manager. IKEA US, Inc. v. US. Dept. ofJustice, 48 F. Supp. 2d 
22,24 (D.D.C. 1999). 
For the reasons discussed, the Petitioner has not established that it would employ the Beneficiary in 
a managerial capacity under the extended petition. 
III. ONE YEAR FOREIGN EMPLOYMENT REQUIREMENT 
The Director revoked the approval of the petition, in part, based on a finding that the Petitioner did 
not establish that the Beneficiary had at least one continuous year of full-time employment abroad 
with a qualifying organization within the three years preceding the filing of the initial new ofryce 
petition in October 2014. 
The regulation at 8 C.F.R. § 214.2(l)(l)(ii)(A) defines "intracompany transferee" as: 
An alien who, within three years preceding the time of his or her application for 
admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate or 
subsidiary thereot; and who seeks to enter the United States temporarily in order to 
render his or her services to a branch of the same employer or a parent, affiliate, or 
subsidiary .... Periods spent in the United States in lawful status for a branch of 
the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the 
United States for business or pleasure shall not be interruptive of the one year of 
continuous employment abroad but such periods shall not be counted toward 
fulfillment of that requirement. 
Further, the regulation at 8 C.F.R. § 214.2(1)(3) requires a petitioner to provide "[e]vidence that the 
alien has at least one continuous year of full-time employment abroad with a qualifying organization 
within the three years preceding the filing oft he petition." 
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Matter ofT- Inc. 
The Petitioner states that the Beneficiary was employed by its Chinese parent company from 2008 
until June 2012. The Beneficiary entered the United States as an F-1 nonimmigrant student in July 
2012 and the Petitioner later filed the initial L-IA petition on his behalf in October 2014. 
In the revocation decision, the Director emphasized that the Beneficiary was not employed abroad 
for a full year in the three years preceding the tiling of the initial petition (between October 20 II to 
October 2014), and therefore does not meet this eligibility requirement. 
The Petitioner maintains that the Beneficiary's. two years and three months in F-1 status, which 
immediately preceded the filing of the initial L-IA petition, was non-interruptive because he was 
"studying U.S. English to gain English proficiency for the parent company's expansion into the U.S. 
market." The Petitioner further contends that "it was the intent of Congress to require that the 
Beneficiary's [qualifying foreign employment] occurred within the three year period immediately 
preceding his application for admission to the U.S. and not ... preceding the filing of the petition." 
We do not agree with the Petitioner's assertion that USCIS should reach over the Beneficiary's July 
2012 admission in F -1 status and subsequent stay of more than two years to determine whether he 
meets the one year of foreign employment requirement. 
As noted, the language of the statute indicates that the relevant three-year period to be used as a 
reference point in determining whether the beneficiary had one year of continuous full-time 
employment with a qualifying entity abroad is the three years "preceding the time of his application 
for admission into the United States." Section IOI(a)(15)(L) of the Act. Th~statute, however, is 
silent with regard to those beneficiaries who have already been admitted to the United States in a 
·different nonimmigrant classification. 
The regulation at 8 C.F.R. § 214.2(1)(3)(iii) clearly requires that an individual petition filed on Form 
1-129 be accompanied by evidence that the beneficiary "has at least one continuous year of full time 
employment abroad with a qualifYing organization within the three years preceding the filing of the 
petition." The definition of"intracompany transferee" also indicates that, if the benefici.ary has been 
employed abroad continuously for one year by a ··qualifYing organization within three years 
preceding the time of the beneficiary's "application for admission into the United States," the 
beneficiary may be eligible for L-1 classification. 8 C.F.R. § 214.2(1)(1)(ii)(A). 
When the definition of "intracompany transferee" is construed together with the regulation at 8 
C.F.R. § 214.2(1 )(3) and section I 01 (a)(15)(L) of the Act, the phrase "preceding the time of his or 
her application for admission into the United States" refers to a beneficiary whose admission or 
admissions were "for a branch of the same employer or a parent, atliliate, or subsidiary thereof' or 
for "brief trips to the United States for business or pleasure." 
Therefore, according to the plain purpose of the Act and regulations, USCIS will not reach back to 
the three-year period preceding the Beneficiary's admission as a nonimmigrant in all 
circumstances. Unless the authorized period of stay in the United States is either brief or "for" a 
qualifying employer, the period of stay will be interruptive. It logically follows that any non-
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Maller ofT- Inc. 
qualifying period of stay in the United States that is longer than two years would prevent a 
Beneficiary from meeting the "one-in-three" requirement at 8 C.F.R. § 214.2(1)(3)(iii). 
The principal focus of section IOI(a)(15)(L) of the Act and 8 C.F.R. § 214.2(1) is on the continuity 
of the beneficiary's employment with the same international qualifying organization in the United 
States. The three-year window established by the statute ensures that there will be no significant 
interruptions in employment within the same organization and is consistent with the purpose of this 
nonimmigrant classification. Allowing the "transfer" of employees who had not worked for the 
organization for over two years would be contrary to Congress' intent that international businesses 
will use this nonimmigrant classification solely to temporarily transfer their foreign executive, 
managerial, and specialized knowledge employees to their United States operations. 
The Beneficiary in this case had been in the United States for the purpose of attending college for 
over two years at the time of the Petitioner filed the initial L-1 A petition. For the reasons discussed 
above, we find that the statute and regulations support a finding that only time spent in the United 
States working for a branch, subsidiary, affiliate, or parent of the foreign employer will be deemed 
non-interruptive. Here, at the time the Petitioner filed the petition, more than two years had passed 
since the Beneficiary terminated his employment with the foreign entity. 
Therefore, we consider the Beneficiary's period of stay as an F-1 nonimmigrant student to be 
interruptive. The Petitioner did not establish that the Beneficiary had at least one year of full-time 
continuous employment with a qualifying foreign entity in the three years preceding the filing of the 
initial L-lA petition. See 8 C.F.R. § 214.2(1)(3)(iii). 
IV. CONCLUSION 
The appeal will be dismissed because the Petitioner did not establish that it will employ the 
Beneficiary in a managerial capacity under the extended petition or establish that the Beneficiary had 
one year of employment abroad with a qualifying entity in the three years preceding the filing of his 
initial L-1 A petition. 
ORDER: The appeal is dismissed. 
Cite as Mauer ofT- Inc., ID# 1242552 (AAO May 14, 2018) 
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