dismissed L-1A Case: Sales And Distribution

U.S. Citizenship 
and Immigration 
Services 
MATTER OF W-I-I-&E- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 9, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an importer and distributor of stone cutting machines, quartz products and granite, 
seeks to continue the Beneficiary's temporary employment as its sales and marketing manager under 
the L-IA nonimmigrant classification for intracompany transferees. Immigration and Nationality Act 
(the Act) section 101(a)(15)(L), 8 U.S.C. § 110l(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, as required, that: (1) it would employ the Beneficiary in a managerial or executive 
capacity under an extended petition; and (2) the Beneficiary was employed abroad in a managerial or 
executive capacity. 
On appeal, the Petitioner submits additional evidence and asserts that it demonstrated that all eligibility 
requirements have been met. The Petitioner emphasizes that the Beneficiary was previously granted 
L-lA status and "was recognized as an executive or manager." 
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 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)(l5)(L) of the Act. In addition, the beneficiary must 
seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. 
II. DEFINITIONS 
"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 
Matter cf W-1-1-&E-LLC 
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 10l(a)(44)(B) of the Act. 
Based on the definitions of managerial and executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F .2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary will be primarily engaged in managerial or executive duties, as opposed to ordinary 
operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 
1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The primary issue to be addressed is whether the Petitioner established that it would employ the 
Beneficiary in a managerial or executive capacity under an extended petition. 
When examining the managerial or executive capacity of a given beneficiary, we will look to the 
petitioner's description of the job duties. The petitioner's description of the job duties must clearly 
describe the duties performed by the beneficiary and indicate whether such duties are in a managerial 
or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of the job duties, 
we examine the company's organizational structure, the duties of a beneficiary's subordinate 
employees, the presence of other employees to relieve a beneficiary from perfmming operational 
duties, the nature of the business, and any other factors that will contribute to understanding a 
beneficiary's actual duties and role in a business. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
A Duties 
The Petitioner stated that the Beneficiary, as sales and marketing manager, has "primary executive 
responsibility for the promotion and sales" of the Petitioner's saw machines, manufactured quartz and 
natural stone products, and for establishing U.S.-based sales, with responsibility for supervising "sales 
executives throughout the United States" who "work on a commission only basis." 
The Petitioner further described the Beneficiary's duties as follows in a supporting letter: 
2 
Matter cf W-1-1-&E-LLC 
1. Establishing sales and marketing strategies for [the Petitioner's] machines, 
manufactured quartz, and natural stone. Approximately 25% 
2. Develop branding and pricing according to cmTent market trends and customer's 
need. Approximately 15-20% 
3. Develops Sales/Marketing operating budgets. Approximately 10% 
4. Analyze competitors' products, sales, and marketing activities. Approximately 
10% 
5. Set goals and objectives for Sales Executives. Approximately 10% 
6. Prepare marketing presentation for trade shows and possible distributors. 
Approximately 10% 
7. Directs sales forecasting activities and sets performance goals accordingly. 
Approximately 10% 
8. Sales analysis. Up to 5% 
In a request for evidence (RFE), the Director instructed the Petitioner to provide a letter explaining in 
more detail how the Beneficiary's position qualifies as either managerial or executive in nature, and 
asked that the Petitioner describe the Beneficiary's typical managerial or executive duties and the 
percentage of time spent on specific tasks. 
In response, the Petitioner submitted a revised letter from its CEO, which included the same list of 
eight duties with the same percentages allocated to each area of responsibility. The Petitioner added 
that the Beneficiary' would be overseeing sales analysis and "the actual distribution or movement of 
product to the customer," traveling within the United States to "promote the brand and establish 
relationships with distributors," and formulating, directing, or coordinating marketing activities or 
policies to promote products. Finally, the CEO stated that the Beneficiary oversees "the Sales and 
Marketing Supervisor, who in turn, oversees four individuals, including one sales executive and three 
outside sales associates." 
The description of the Beneficiary's duties is overly broad and does not provide sufficient infmmation 
regarding the specific tasks she performs, such that they could be classified as primarily managerial 
or executive in nature. Many of the duties reflect the Beneficiary's authority over sales and marketing 
activities without providing any insight into what she primarily does as a part of her regular routine. 
Duties such as establishing strategies, developing branding, and setting goals and objectives are too 
ambiguous to establish the nature of the Beneficiary's typical duties and are insufficient to establish 
that she primarily performs higher-level tasks consistent with the statutory definition of either 
managerial or executive capacity. The Petitioner did not provide examples of the Beneficiary's actual 
duties or other supporting documentation that would assist in establishing the nature of the work she 
performs for the company, and the submitted list of duties did not meet the Petitioner's burden to 
submit a detailed description of the Beneficiary's position. 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. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). 
3 
Matter cf W-1-1-&E-LLC 
Further, some of the stated duties, including the Beneficiary's responsibility for "sales analysis," 
analyzing "competitors' products, sales and marketing activities," preparing marketing presentations, 
and traveling to "promote the brand and establish relationships with distributors," without further 
explanation, appear to be operational sales and marketing duties, rather than managerial or executive 
functions. 
The fact that the Beneficiary will oversee a department of 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. While the Beneficiary may 
exercise discretion over the Petitioner's sales and marketing operations, the submitted position 
description alone is insufficient to establish that her actual duties would be primarily managerial or 
executive in nature. As discussed further below, the Petitioner has not provided a consistent or well­
documented description of its staffing and structure, which makes it difficult to discern to what extent 
the Beneficiary is relieved from significant involvement in routine sales and marketing activities. 
B. Business Activities, Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual will be acting in a 
managerial or executive capacity, we take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. See section 101(a)(44)(C) 
of the Act. 
The Petitioner stated on the Form I-129, Petition for a Nonimmigrant Worker, that it had eight 
employees at the time of filing in September 2018. It submitted an organizational chart with 11 staff 
identified by name. The chart depicted the Beneficiary as sales and marketing manager, reporting to 
the CEO/President and directly supervising five staff: one marketing employee, two sales executives, 
and two outside sales employees. Although the Petitioner's CEO/President stated in his initial letter 
that the Beneficiary supervises commission-only sales executives throughout the United States, the 
chart indicates that four of the Beneficiary's subordinates are based in Florida and one is in China. 
The chart also shows that the U.S.-based subordinates are salaried employees, rather than commission­
only staff. 
The Petitioner submitted its state quarterly wage report for the second quarter of 2018, as well as a 
detailed payroll statement for the month of August 2018. These documents corroborated the 
Petitioner's claim that it has eight employees, but did not include all of the Beneficiary's claimed 
subordinates. Specifically, the payroll statement indicates that the Petitioner has a three-person sales 
department that includes the Beneficiary, the U.S.-based sales executive identified on the 
organizational chart I I, and an employee identified on the organizational chart as 
"machine assembled & installation [sic]" I I The Petitioner also paid wages to the individual 
identified on the chart as "marketing"! , .1 but the payroll record shows that she works in the 
"office" department with the CEO and not in the sales department. 
4 
Matter cf W-1-1-&E-LLC 
In the RFE, the Director requested a more detailed organizational chart, summaries of job duties, the 
educational level for each of the Beneficiary's subordinates, and additional evidence of payments to 
employees and contractors working under her supervision. The Director also noted that, if the 
Beneficiary is a first-line supervisor, the Petitioner should provide evidence showing that her 
subordinates are professionals. 
As noted, in response to the RFE, the Petitioner's CEO stated that the Beneficiary supervises a "Sales 
and Marketing Supervisor," who, in turn, supervises a sales executive and three outside sales 
associates The Petitioner submitted a revised organizational chart depicting this structure. The chart 
identified! I who was previously identified as "marketing" with no subordinates as the "sales 
and marketing supervisor" with four subordinate staff. The Petitioner did not explain the changes to 
its organizational hierarchy that occurred between the date of filing on September 14, 2018 and the 
date of the RFE response on October 3, 2018, nor did it explain its CEO's initial statement, made in a 
letter dated August 22, 2018, that the Beneficiary's subordinates are all sales executives who are paid 
strictly on commission. 
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). 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 Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). A petitioner 
may not make material changes to a petition in an effmi to make a deficient petition conform to USCIS 
requirements. See Matter of Izwnmi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
Absent an explanation, the Petitioner has not established thatl I holds a supervisory position 
in the sales and marketing department, as indicated in the latter organizational chart. Further, the 
description submitted for her position does not include supervisory duties, and only states that she 
"helps sales executives to complete tasks successfully." The evidence must substantiate that the duties 
of a given beneficiary and his or her subordinates correspond to their placement in an organization's 
structural hierarchy; an organizational chart reflecting tiers of subordinate employees and employee 
job titles, without more, is not probative and will not establish that an organization is sufficiently 
complex to support an executive or managerial position. 
Further, the Petitioner's response to the RFE did not address the Director's request for additional 
evidence of wages paid to employees. The record does not contain evidence of wages or other 
payments made to three of the four sales staff included on the latter organizational chart. The 
Petitioner provided evidence of wages paid tol l(who, as noted above, is not identified on 
the Petitioner's payroll as a member of the sales department), and to one outside sales executive 0 I I who is claimed to be a "commission-based only" employee). 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A) of the Act. Personnel managers are required to primarily 
supervise and control the work of other supervismy, professional, or managerial employees. Contra1y 
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 
5 
Matter cf W-1-1-&E- LLC 
supervisory duties unless the employees supervised are professional." 1 Id. If a beneficiary directly 
supervises other employees, the beneficiary must also have the authority to hire and fire those 
employees, or recommend those actions, and take other personnel actions. 8 C.F.R. 
§ 214.2(l)(l)(ii)(B)(3). 
The Petitioner has confirmed that the Beneficiary's subordinates do not possess, and are not required 
to possess baccalaureate degrees, and provides evidence on appeal in support of its assertion that a 
bachelor's degree requirement is not typical for sales employees in its industry. However, regardless 
of the industry norms, the Beneficiary cannot qualify as a personnel manager based on her supervisory 
duties if she does not supervise a staff of subordinate managers, supervisors, or professionals. The 
Petitioner concedes that the Beneficia1y's subordinates are not professionals and, as discussed above, 
has not consistently claimed that the Beneficiary oversees a subordinate supervisor. Thus, the 
Petitioner has not shown that the Beneficiary's subordinate employees are supervisory, professional, 
or managerial, as required by section 101(a)(44)(A)(ii) of the Act. Further, the Petitioner has not 
stated that the Beneficiary is responsible for hiring and firing employees or recommending these and 
other personnel actions. Accordingly, the Petitioner did not submit sufficient evidence to establish 
that the Beneficiaiy would be employed as a personnel manager. 
The Petitioner has not articulated, in the alternative, how the Beneficiary qualifies as a function 
manager. 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 101(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 will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at 
a senior level within the organizational hierarchy or with respect to the function managed; and (5) the 
beneficiary will exercise discretion over the function's day-to-day operations." Matter of G- Inc., 
Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
Here, the Petitioner did not clearly describe the Beneficiary's actual duties, such that we can determine 
that they are primarily managerial in nature, nor did it establish how the Beneficiary would primarily 
manage, rather than perform, the company's sales and marketing functions. The Petitioner indicates 
that the Beneficiary has five subordinate staff to support her in the sales and marketing department, 
yet it has documented its employment of only two of these staff. The Petitioner has not explained this 
discrepancy between its claimed structure, and its documented staffing levels. 
1 To determine whether a beneficiary manages professional employees, we must evaluate whether the subordinate positions 
require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) (defining 
"profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum 
requirement for entry into the occupation"). Section 101 ( 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." 
6 
Matter cf W-1-1-&E-LLC 
For similar reasons, the Petitioner has not established that the Beneficiary would be employed in an 
executive capacity. The statutmy definition of the term "executive capacity" focuses on a person's 
elevated position within a complex organizational hierarchy, including major components or functions 
of the organization, and that person's authority to direct the organization. Section 10l(a)(44)(B) of 
the Act. Under the statute, a beneficiary must have the ability to "direct the management" and 
"establish the goals and policies" of that organization. Inherent to the definition, the Beneficiary must 
primarily focus on the broad goals and policies of the organization rather than the day-to-day 
operations of the enterprise. An individual will not be deemed an executive under the statute simply 
because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. A beneficiary must also exercise "wide latitude in discretionary decision 
making" and receive only "general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization." Id. 
Here, the Petitioner did not provide a sufficiently detailed description of the Beneficiary's actual job 
duties in support of a claim that her duties are primarily executive in nature. Further, although the 
Petitioner asserts that the Beneficia1y establishes sales and marketing strategies, goals, and objectives, 
we cannot dete1mine that these are her primary duties or that she would be relieved from significant 
involvement in the day-to-day, non-executive activities associated with the sales and marketing of the 
Petitioner's products. Again, the Petitioner claims that the Beneficiary has five subordinates, but 
documented its employment of only two of these individuals, one of whom earns a higher salary than 
the Beneficiary and, according to the Petitioner's payroll report, is not actually in the sales depaiiment. 
Due to the evidentiary deficiencies addressed above, the Petitioner has not met its burden to establish 
that the Beneficiary would be employed in a managerial or executive capacity under an extended 
petition. 
IV. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director also denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary was employed abroad in a managerial or executive capacity prior to her transfer to the 
United States. See 8 C.F.R. § 214.2(1)(3)(iv). On appeal, the Petitioner emphasizes that it provided 
all requested information regarding the Beneficiary's position abroad and the foreign entity's stmcture. 
It also states that "the foreign employment has not changed since the initial LIA was approv[ed]. It 
is puzzling that in spite of the facts, the renewal application was denied." 
At the time of filing, the Petitioner submitted a letter from its Chinese parent company stating that the 
Beneficiary served in the position of sales and marketing manager abroad beginning in 2009. The 
foreign entity's vice president stated that the Beneficiary "managed the marketing and sales 
department and ... import and export activities" and further described her duties as follows (bullets 
added): 
• Promotion and sales of our ... Bridge Saw machines, along with our manufactured 
quaiiz and natural stones from Italy to Brazil 
• In charge of the marketing analysis of the U.S. 
7 
Matter cf W-1-1-&E- LLC 
• Arranged and attended trade shows in the U.S. 
• In charge of preparing our marketing materials including our company brochures 
for the machines and manufactured quartz. 
• Prepared the script for the trade shows as well as the proposals to our distributors 
along with the sales contracts. 
The Beneficiary's resume submitted at the time of filing indicates that she was responsible for sales 
and marketing management "in Brazil," and the Petitioner provided several letters from Brazilian 
buyers indicating that they dealt with the Beneficiary when purchasing quartz and marble products 
sold by the Chinese entity. 
The job description and supporting evidence submitted at the time of filing indicated that the 
Beneficiary, despite her job title, was primarily responsible for performing the sales and marketing 
duties for the foreign entity in Brazil and the United States, rather than managing these activities. The 
position description did not mention any subordinate personnel and it is unclear whether the foreign 
entity had any other staff based in Brazil. In response to the RFE, the Petitioner provided a revised 
foreign job description for the Beneficiary which was nearly identical to her U.S. job description, but 
it bore little resemblance to the description provided in the vice president's letter at the time of filing 
and the Petitioner did not provide an explanation for the substantial revisions. 
The Petitioner also made unexplained changes to the foreign entity's organizational chart. The chart 
submitted at the time of filing showed the Beneficiary supervising an export control employee and a 
sales & logistics employee, presumably based in China. Based on the job descriptions submitted for 
these employees, neither one performed sales or marketing duties. In response to the RFE, the 
Petitioner submitted a revised chart for the foreign entity which included a third subordinate identified 
as a sales executive. However, the Petitioner did not explain how the past structure of the foreign 
entity changed subsequent to the filing of this petition. 
In sum, the evidence submitted at the time of filing indicating that the Beneficiary performed non­
managerial sales and marketing activities for the foreign entity in the Brazilian and U.S. markets, and 
that she did not have any subordinate sales staff, in Brazil or elsewhere, to assist her with these duties. 
The Petitioner made changes to both the Beneficiary's foreign job duties and the foreign entity's 
organizational chart in response to the RFE; however, as noted, a petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See 
Izzumi, 22 l&N Dec. at 176. 
The Petitioner does not address this ground for denial in any detai I on appeal. Rather, it emphasizes 
that the Beneficiary was previously granted L-1A status and states that "it is puzzling that in spite of 
the facts, the renewal application was denied." We are not required to approve applications or 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may have 
been erroneous. See Matter of Church Scientology Int'!, 19 l&N Dec. 593, 597 (Comm'r 1988); see 
also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). Further, a 2017 USCIS 
policy memorandum, which is binding on all USCIS components, including the AAO, states: "An 
8 
Matter cf W-1-1-&E-LLC 
adjudicator's fact-finding authority ... should not be constrained by any prior petition approval, but 
instead, should be based on the merits of each case." 2 
Here, the evidence submitted with this extension petition contains deficiencies and unresolved 
inconsistencies regarding the Beneficiary's foreign duties and the foreign entity's structure during the 
period of her employment abroad. The Petitioner has not adequately addressed this issue on appeal. 
Accordingly, we agree with the Director's determination that the Petitioner did not establish the 
Beneficiary's employment abroad in a managerial or executive capacity. 
V. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of W-1-1-&E-LLC, ID# 3475597 (AAO May 9, 2019) 
2 USCIS Policy Memorandum PM-602-0151, Rescission of Guidance Regarding Deference to Prior Determinations of 
Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status (Oct. 23, 2017), 
https ://v..rww. uscis. gov/laws/pol icy-memoranda. 
9