dismissed L-1A Case: Retail Grocery

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF V- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 9, 2018 
PETITION: FORM I-129 , PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a retail grocery business, seeks to temporarily employ the Beneficiary as chief 
executive officer (CEO) of its new office 1 under the L-1 A nonimmigrant classification for 
intracompany transferees . See Immigration and Nationality Act (the Act) section IOI(a)(15)(L), 
8 U.S.C. § 1101(a)(15)(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 Vermont Service Center denied the petition , concluding that the Petitioner did 
not establish, as required, that : ( 1) the Petitioner secured sufficient physical premises to hou se the 
new office; (2) the new office would support a managerial or executive position within one year of 
approval ofthe petition ; and (3) the Beneficiary has been employed abroad in a managerial or executive 
capacity. 
On appeal, the Petitioner submits additional evidence and asserts that the denial was erroneous based 
on the evidence submitted. The Petitioner contends that the Beneficiary was employed abroad in a 
managerial capacity and that the new office will support a managerial or executive position within 
one year. 
Upon de novo review, we will withdraw the Director's determin ation that the Petitioner did not show 
that it had sufficient physical premises to house the new office? However , as the Petitioner has not 
overcome the two remaining grounds for denial , we will dismiss the appeal. 
1 The term "new office" refers to an organization which has been doing business in the United States 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 no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
2 The record contains: the Petitioner's retail lease agreement for an existing store known as · . evidence that 
the owner of the store approved its sub-lease to the Petitioner; evidence that the Petitioner has been paying rent to the 
sub-lessor; the Petitioner's sales and use tax permit; proof of insurance for the store premises; the Petitioner's utility bi lis 
for the premises; bank statements and canceled checks confirming that the Petitioner is already operating this store; and a 
trade name license authorizing the Petitioner to do business as ' This evidence is sufficient to establish by a 
preponderance of the evidence that the Petitioner secured sufficient physical premises to house its new office, as required 
by 8 C.F.R. § 214.2(1)(3)(v)(A). 
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Matter of V- LLC 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification for a new office, 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. 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. Section 101(a)(I5)(L) of the Act. The petitioner must also 
establish that the beneficiary's prior education, training, and employment qualities him or her to 
perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3 ). 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and 
scope of the entity, its organizational structure, its financial goals, and the size of the U.S. 
investment. See generally , 8 C.F.R. § 214.2(1)(3)(v). 
The statute defines "managerial capacity" as 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. 
The term "executive capacity" is defined as 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 1 01 (a)( 44 )(B) of the Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director determined that the Petitioner did not establish that its new office would be able to 
support a managerial or executive position within one year of approval of the petition. Specifically, 
the Director found that the Petitioner did not establish that the company would have sufficient 
staffing within one year to remove the Beneficiary from performing non-qualifying duties. 3 
3 
The Director also questioned whether the Petitioner would actually be operating the store known as As 
noted above, the Petitioner provided evidence indicating that it began operating under this name in early 2017. 
2 
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Mau er ~f V- LLC 
On appeal, the Petitioner asserts that it has already hired a store manager and will hire three sales 
clerks to perform the day-to-day duties of the business upon approval of the petition. In addition , the 
Petitioner claims that the Beneficiary will be negotiating with third parties to open an additional 
location , further supporting the Petitioner's capacity to expand to the point where it can support an 
L-1 A manager or executive. 
In the case of a new office petition , beyond the description of a beneficiary's proposed job duties, we 
review the petitioner 's business and hiring plans and evidence that the business will grow 
sufficiently to support a beneficiary in the intended managerial or executive capacity. A petitioner 
has the burden to establish that it would realistically develop to the point where it would require the 
beneficiary to perform duties that are primarily managerial or executive in nature within one year. 
Accordingly, the totality of the evidence must be considered in analyzing whether the proposed 
managerial or executive position is plausible considering a petitioner 's anticipated staffing levels and 
stage of development within a one-year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
A. Projected Staffing and Business Plan 
The Petitioner stated on the Form I-129 that it intends to operate a retail store, and it provided 
evidence that it has leased a 4,000 square foot store that sells groceries, tobacco and alcohol 
products, deli sandwiches , and lottery tickets. The Petitioner submitted a Google maps screenshot 
confirming the location of the store , which indicates that the store is open from 6 a.m. until I 0:45 
p.m. 
In a supporting letter, the Petitioner stated that it plans to employ the Beneficiary as its chief 
executive officer and will hire one store manager and three cashiers and store clerks during the first 
year of operations. The Petitioner's business plan indicates that it has already hired a store manager 
and would hire two additional managers in its third and fifth years of operation as the company 
expands to additional locations. The store manager position is responsible for supervising and 
assigning duties to sales employees, reconciling cash receipts , monitoring sales activities, reviewing 
inventory and sales records, enforcing safety health and security rules, and preparing rep011s. 
The business plan also includes job descriptions for cashier and store clerk positions , but its 
"personnel summary" indicates that the company will "increase its headcount to 4 employees by 
year 3," a statement that suggested that not all positions would be tilled in the first year. The 
business plan's "income statement projection '' for the first three years of operations indicates that the 
Petitioner plans to pay $20,000 in salaries and wages in year one, $22,000 in year two, and $24,000 
in year three. The Beneficiary ' s offered salary is $35.000. 
In response to a request for evidence (RFE), the Petitioner provided a proposed organization al chart 
identifying the Beneficiary as President & CEO , as general manager, and three 
proposed sales clerk positions. The Petitioner also submitted a business plan with revised income 
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Matter of V- LLC 
statement projections. In this version, the projected salary and wage expenses are $35,000. $45.000 
and $55,000, respectively, for the first three years of operation.
4 
We agree with the Director that the Petitioner has not shown how it would support a managerial or 
executive position within one year. The initial business plan suggested that the company would 
employ only the Beneficiary and the store manager during the first year. as it noted that the 
employee headcount would reach only four employees by the third year. The Petitioner did not 
provide proposed salaries for each proposed position; however, it is unclear how the $20,000 in 
projected salaries indicated in the initial business would be sufficient to compensate more than one 
full-time employee. Although the Petitioner revised the first year salary figure to $35.000 in 
response to the RFE, it did not explain how this figure would cover the annual salaries and wages of 
the four subordinates depicted on the organizational chart. On appeal, the Petitioner maintains that it 
will employ the Beneficiary, a store manager and three store clerks immediately upon approval of 
the petition, but it does not address the Director's concerns regarding the company's anticipated 
salary expenses. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10l(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. 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." 5 Section 101(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and tire those employees. or 
recommend those actions, and take other personnel actions. 8 C.F .R. ~ 214.2(1)( I )(ii)(B)(J). 
Here, although the Beneficiary would have the authority to hire and fire employees, the Petitioner 
has not shown that he would supervise subordinate managers, supervisors, or professionals. The 
Petitioner indicates that he will supervise a store manager (who is also referred to as a general 
manager), and the Petitioner indicates that this individual has a master's degree and will supervise 
subordinate sales clerks. 
4 
We note that the Petitioner decreased its cost of goods sold expenses and net income figures to offset the differences in 
projected salaries. Otherwise, the business plan appears to be identical to the original plan. 
5 In evaluating 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. C( 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 I 0 I (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." 
Therefore, we must focus on the level of education required by the position, rather than the degree held by subordinate 
employee. The possession of a bachelor"s degree by a subordinate employee does not automatically lead to the 
conclusion that an employee is employed in a professional capacity. The Petitioner has not established that a bachelor's 
degree or higher is actually necessary to perform the store manager"s claimed duties. 
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Matter of V- LLC 
However, the evidence must substantiate that the duties of a beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy. Supervisory or managerial 
job titles are not probative and will not establish that an organization is sut1iciently complex to 
support a managerial position. The evidence does not support a conclusion that the store manager 
would be acting in a managerial, supervisory, or professional capacity. Instead, based on the 
projected staffing levels supporting by the Petitioner's business plan, the store manager would be 
required to perform the actual day-to-day tasks of operating the retail store alongside any store clerks 
or cashiers hired during the first year. The Petitioner has not provided evidence of an organizational 
structure sutlicient to elevate the Beneficiary to a supervisory position higher than a first-line 
supervisor of non-professional employees. Therefore, the Beneficiary's position would not qualify 
as a personnel manager by the end ofthe first year of operations. See section 10l(a)(44)(A)(iv) of 
the Act. 
As required by section 101(a)(44)(C) ofthe Act, if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity. 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. 
The Petitioner consistently indicates that it will employ a chief executive officer and a subordinate 
manager. The record contains inconsistent statements and evidence regarding the company's 
intention to hire store clerks during the first year of operations. Even if the Petitioner had 
established that it would employ a store manager and three sales staff by the end of the first year. it 
is unclear how this staff would be sufficient to remove the Beneficiary from significant involvement 
in the day-to-day operations of a 4,000 square foot store that will be open for more than 16 hours 
daily. A store of this size would reasonably require at least two workers on the premises to stock 
shelves, receive deliveries, and handle customer transactions on a day-to-day basis. 
The Petitioner's business plan mentions its desire to maintain lean payroll costs during the 
company's early stages of development, but it does not appear that the reasonable needs of the 
company could be met by the services of employees earning only a total of only $20,000 annually, 
or even $35,000 annually. In fact, it would cost over $61,488 annually to staffthe store with a single 
minimum wage worker during its operating hours.6 The Petitioner did not submit evidence that it 
would employ sufficient subordinate staff to perform the actual day-to-day, non-managerial 
operations of the company. 
The Petitioner indicates for the first time on appeal that it was already in negotiations to open a 
second store location within its initial year of operations. This claim is not supported by either 
version of the Petitioner's business plan, and the Petitioner does not provide any additional evidence 
related to a second store. While the Petitioner previously indicated that it would look to open a 
second store in its third year, that claim is also not supported by the company's financial projections, 
"The Petitioner is open for business for over 117 hours per week. Connecticut's minimum wage at the time of filing was 
$10.10 per hour. See Connecticut Department of Labor, https://www.ctdol.state.uslwgkwkstnd/DOL-75.pdf (accessed 
on January 8, 2017). A full-time minimum wage worker would earn an annual salary of$21,008. 
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Maller of V- LLC 
which show no significant increases in anticipated costs or revenues during the first three years of 
operations. 
In sum, the Petitioner has not shown how the company would grow to the point where it would 
require the Beneficiary to perform primarily managerial or executive duties within one year. 
B. Duties 
Turning to the Beneficiary's proposed position, the Petitioner submitted a very broad description of 
the Beneficiary's duties that provides little insight into what he would do on a day-to-day basis by 
the end of the first year of operations. The Petitioner stated that the Beneficiary will allocated 30 
percent of his time as CEO to "Corporate Affairs and Business Development.·· The Petitioner 
indicated that this responsibility would include carrying out overall company goals, ''strategic 
planning, project implementation and management,'' identifying "business opportunity development 
for expansion," planning and directing operations, structuring overall business development 
objectives and strategies, executing and modifying the business plan, and improving processes and 
procedures in support of the company's goals. The Petitioner did not provide any relevant details. 
such as strategies or goals he would implement, projects he would manage. or processes or 
procedures he would improve in the course of his daily routine as the senior employee in the 
Petitioner's store. 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 reiterating the regulations. Fe din Bros. Co., Ltd. v. Sava. 724 F. Supp. II 03, II 08 
(E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
An additional 30 percent of the Beneficiary's proposed duties are classified as "service 
coordination," and include conducting "process improvement by identifying new technologies and 
process workflows," reviewing and developing "customer service related reports." leading meetings 
with managers and personnel on "specific projects and deliverables.'' monitoring adherence to rules 
and procedures, monitoring performance and directing expansion efforts.'' Again, the Petitioner did 
not explain the actual tasks the Beneficiary will perform within the context of its business, such as 
the "specific projects and deliverables" he will oversee, or the technologies and process worktlows 
he would implement within the store. 
Finally, the Petitioner indicated that the Beneficiary would spend 40 percent of his time on human 
resource management duties, which would include recruiting and leading the team, motivating and 
assisting managers, managing "the overall human resource activity" and assessing employee 
productivity. As noted by the Director, the Petitioner did not explain why human resources 
functions would require such a large portion of the Beneficiary's time, given that the Petitioner has a 
minimal staffing plan and does not have sufficient proposed staff to carry out the routine. day-to-day 
operations of the business during its operating hours. The Petitioner has not addressed the Director's 
concerns on appeal and we agree that the record does not support its claim that these functions 
would require nearly halfofthe Beneficiary's time. 
Matter of V- LLC 
Overall, the description indicates that the Beneficiary will have an elevated level of authority over 
the Petitioner's business, but does not present a detailed, credible account of his actual day-to-day 
duties within the context of the business and its plans for the first year operations. The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co .. Ltd., F. Supp. at 1108, aff'd, 
905 F.2d 41 (2d. Cir. 1990). As discussed above, the Petitioner's financial projections do not 
corroborate the staffing plan depicted in the company's organizational chart. Further, even if the 
Petitioner hired all projected employees, it is unclear how a single subordinate supervisor or 
manager would relieve the Beneficiary from performing operational and first-line supervisory duties 
in a business with such extensive operating hours. Therefore, the Petitioner claim that the 
Beneficiary would spend 100% of his time on managerial or executive duties is not credible when 
viewed within the totality of the evidence, and we cannot determine how he would actually spend his 
time. 
The fact that the Beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of section 101(a)(44) 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. The Petitioner has consistently stated that the Beneficiary will 
occupy one of the senior positons in the new oftice, but has not submitted a job description or 
consistent, credible supporting evidence sufficient to demonstrate that he would primarily engage in 
managerial or executive duties, or that the new oftice would support a managerial or executive 
position, after the initial year of operations. 
III. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The remaining issue addressed by the Director is whether the Petitioner established that the foreign 
entity has employed the Beneficiary in a managerial capacity. The Petitioner does not claim that the 
Beneficiary has been employed abroad in an executive capacity. 
In the denial decision, the Director found that the record did not support the Petitioner's claim that 
the Beneficiary supervises subordinate managers or professionals. Further. the Director noted that 
the evidence indicated that the Beneficiary performs a number of non-managerial duties and was 
therefore insufficient to establish that he is primarily employed in a managerial capacity. 
On appeal, the Petitioner asserts that the evidence clearly shows that the Beneficiary supervises and 
controls department managers and professional employees, and that he is a senior level manager 
responsible for managing a major component and function of the company. 
A. Duties 
The definition of managerial capacity has two parts. First, the Petitioner must show that the 
Beneficiary performs certain high-level responsibilities. Champion World. lnc. v. !NS, 940 F.2d 
1533 (Table), 1991 WL 1444 70 (9th Cir. July 30, 1991 ). Second, the Petitioner must prove that the 
Beneficiary has been primarily engaged in managerial or executive duties, as opposed to ordinary 
Matter of V- LLC 
operational activities alongside the foreign entity's other employees. See, e.g.. Family Inc. v. USCIS. 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World. 940 F.2d at 1533. 
The Petitioner stated that its foreign atliliate has employed the Beneficiary as its managing director 
since June 201 I. The foreign entity is described in its marketing materials as a wholesale grocery 
store selling bulk items such as rice, sugar, cattle feed, cooking oil. and other merchandise. The 
Petitioner provided the following duty description for the Beneficiary in response to the Director's 
RFE: 
a) Working closely with the President ... to set the overall organizational policies 
and priorities, and development of long-term plans. goals and investment 
opportunities, revenue generation and strategic partnerships to ensure the success 
of the business (20% ); 
b) Developing operational functions essential for increasing the company's 
productivity, evaluating performance goals. conducting and leading bi-weekly 
meetings with Department heads to strategize operational goals and 
implementation (20% ); 
c) Increase productivity by aggressive products promotion and placement. 
establishing and evaluating standards, and setting guidelines to be followed by all 
production and administrative departments ( 15% ); 
d) Monitoring company polices and developing new operational procedures and 
processes to increase efficiency and streamline production and distribution (1 0% ); 
e) Improving the quality and quantity of company products and services (I 0% ); 
f) Developing, communicating, and implementing processes to ensure efficient and 
effective execution of policies and procedures (1 0% )[ ;J 
g) Coordinating with Sales & Marketing teams to expand client base and explore 
new opportunities for business (1 0% ); 
h) Researching and developing new strategies to achieve company goals and. 
objectives (5%)[.] 
The Petitioner stated that this description indicates that the Beneficiary managed the company and 
the various departments under him, supervised and controlled the work of others. and made 
decisions on daily operations and functions under his authority. It further explained that his 
discretionary decisions including developing marketing strategies, deciding which types of business 
alliances to pursue, identifying and negotiating with clients. and recruiting professional staff. 
While this description includes broadly-described managerial responsibilities, it does not provide 
sutlicient insight into the nature of the Beneficiary"s day-to-day tasks within the foreign entity's 
wholesale grocery business. The Petitioner does not identify. for example. the specific actions the 
Beneficiary took to "develop'" operational functions, his role in product promotion. the marketing 
strategies he developed, or how he improved the company's products and services. 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 did not 
provide sufficient detail or explanation of the Beneficiary"s activities in the course of his daily 
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Matter of V- LLC 
routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. 
Co., Ltd., 724 F. Supp. at 1108, af{'d, 905 F .2d 41 (2d. Cir. 1990). 
The Petitioner also submitted a copy of the Beneficiary's resume. In describing his employment 
with the foreign entity, the Beneficiary states that he formulates and implements company policies, 
monitors operating and financial results, maintains operational performance, represents the company 
to major customers, and assumes accountability for all operations. However, he also lists the 
following non-managerial duties: 
• To take care of all customers 
• Responsible for Office Stationary and Stock Records. 
• Service product- Inward & Outward. 
• Replacement- Inward & Outward. 
• Record keeping and filing. 
• Taking care of coordination between staff & customers. 
• Responsible for the training of the new joiner. 
• Also have to take care of due payments and payments to suppliers. 
• I had to make sure of order processing in time. 
• Responsible for stocks to order or to supply. 
• To ensure right print of barcodes and right price on right material. 
• Responsible for Bill/Cash memo/Challan. 
When viewing the two lists of job duties together, it is evident that the Beneficiary more likely than 
not has performed a mix of qualifying and non-qualifying duties for the foreign entity, despite the 
Petitioner's inclusion of only higher-level duties in its description of his role. As a result, we cannot 
rely on the percentages the Petitioner assigned to individual responsibilities. 
Whether the Beneficiary is a managerial employee turns on whether the Petitioner has sustained its 
burden of proving that his duties are "primarily" managerial. See section 10 I (a)( 44)(A) of the Act. 
Here, the Petitioner does not credibly document what proportion of the Beneficiary's time involved 
managerial functions and what proportion involved non-qualities duties. The record indicates that 
the Beneficiary performed both qualifying tasks and administrative or operational tasks. but does not 
quantify the time the Beneficiary spends on these different duties. This lack of documentation is 
important because several of the Beneficiary's daily tasks, such as ordering stock, printing and 
placing barcodes, record keeping, filing, making payments, and taking care of customers, do not fall 
under the statutory definition of managerial capacity. As we do not have information regarding how 
much time the Beneficiary allocated to non-qualifying duties, we cannot determine whether the 
Beneficiary has been primarily performing the duties of a manager. See !KEA US, Inc. v. US. Dept. 
of'Justice, 48 F. Supp. 2d 22.24 (D.D.C. 1999). 
Even though the Beneficiary is depicted as a senior employee who reports to the foreign entity's 
owner, eligibility for this classification requires that the duties of a position be ·•primarily" 
managerial or executive in nature. Section 1 Ol(A)( 44) of the Act. Here. the job description alone is 
insufficient to establish that the Beneficiary's foreign position meets that requirement. 
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Matter of V- LLC 
B. Staffing 
Beyond the required description of the job duties, USCIS examines 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. 
In its initial supporting letter, the Petitioner stated that the Beneficiary "has managed a staff of over 
40 employees." The foreign entity's organizational chart depicts a total of only 14 employees and 
indicates that the Beneficiary has two direct reports (a sales executive and salesman). who each 
supervise two "staff." The chart also lists an operating manager who reports to the owner and 
oversees a marketing manager and an accountant, who in turn supervise three additional staff. 
The Petitioner asserts that the Beneficiary's direct reports are ·'department managers·· and 
professionals and therefore appears to claim that he qualifies as a personnel manager based on his 
supervisory responsibilities. As discussed, personnel managers are required to primarily supervise 
and control the work of other supervisory, professional, or managerial employees. 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 
10l(a)(44)(A)(iv) ofthe Act. 
The Petitioner has not demonstrated that the Beneficiary's direct subordinates are managers, 
supervisors, or professionals. The Petitioner stated that the sales executive is a high school graduate 
responsible for answering customer questions, offering advice on products, introducing new 
products to clients, organizing sales visits, and demonstrating products. The Petitioner does not 
indicate that he performs any managerial or supervisory responsibilities. Even though the Petitioner 
indicates that the Beneficiary's other direct subordinate, a salesman. has a bachelor's degree, his 
duties are limited to sales functions. The Petitioner does not indicate that he supervises the "staff' 
depicted below him on the organizational chart, nor does the duty description indicate that this role 
requires the completion of a bachelor's degree, such that it could be considered a professional 
position. The lower-level employees are responsible for receiving deliveries and "arranging those 
things inside the firm." The Petitioner indicates that these employees are high school graduates who 
do not perform any supervisory duties. 
The Petitioner has claimed, in the alternative, that the Beneficiary has managed an essential function 
of the foreign entity. 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 IOI(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 "(I) 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 perfhrm, 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 
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Matter of V- LLC 
day-to-day operations." Matter ofG- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). In this 
matter, the Petitioner has not described or provided evidence that the Beneficiary manages an 
essential function for the foreign entity. The Petitioner has not identified a clearly defined activity 
that the Beneficiary managed, established that his duties have been primarily managerial in nature. 
or established that other statl'relieved him from performing non-qualifying duties. 
The Petitioner emphasizes on appeal that the foreign entity is "a family owned company and does 
not have varied departments with hundreds of employees." However, the Director did not deny the 
petition due to the lack of "varied departments'' or based on the foreign entity's size. The Petitioner 
did not support its initial claim that the Beneficiary supervised "40 employees" within a company 
that employs 14 people, and nor did the Petitioner corroborate its statements that the sales personnel 
who report to the Beneficiary are "department managers," or its claim that he primarily manages an 
essential function. For these reasons, the Petitioner has not established that the Beneficiary has been 
employed abroad in a managerial capacity. 
IV. CONCLUSION 
The Petitioner has not established that it will employ the Beneficiary in a managerial or executive 
capacity within one year, or that the Beneficiary has been employed abroad in a managerial capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of'V- LLC, ID# 930657 (AAO Jan. 9, 2018) 
I I