dismissed L-1A Case: Security Equipment

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-D-A-G- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 22, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which sells security equipment manufactured by its foreign affiliate, 
1 
seeks to extend 
the Beneficiary's temporary employment as its general manager under the L-IA nonimmigrant 
classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 
10l(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-1A 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, Vermont Service Center, denied the petition. The Director concluded that the 
evidence of record did not establish that the Benefici:;lry will be employed 'in the United States in a 
managerial or executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner submits copies of previously 
submitted evidence and asserts that the Director erred by not taking into account the Petitioner's 
status as a new office. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for 1 continuous year within 3 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, executive, or specialized knowledge capacity. Section 101(a)(l5)(L) ofthe Act. 
1 The Petitioner refers to the foreign company as its parent company, but the foreign company is not a member of the 
petitioning limited liability company. Rather, the two entities are affiliates, because the same individual holds a majority 
interest in both companies. See definition of"affiliate" at 8 C.F.R. § 214.2(l)(l)(ii)(L). 
Matter of A-D-A-G- LLC 
When a petitioner seeks to extend the validity of an L-1 A petition that involved the opening of a new 
office, the petition must include a statement of the duties performed by the beneficiary for the 
previous year and the duties the beneficiary will perform under the extended petition, as well as a 
statement describing the staffing of the new operation, including the number of employees and types 
of positions held. 8 C.F.R. § 214.2(1)(14)(ii)(C) and (D). 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that it will 
employ the Beneficiary in a managerial or executive capacity under the extended petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) manages the organization, or a department, subdivision, function, or component 
of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization,. or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization), or if no other employee is directly 
supervised, functions at a senior level within the organizational hierarchy or 
with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. 
Further, "[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." ld. 
Section 1 01(a)(44)(B) of the Act, 8 U.S.C. § 11 01(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) directs the management of the organization or a major component or function of 
the organization; I 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
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Matter of A-D-A-G- LLC 
(iv) receives only general supervision or direction from higher-level executives, the 
board of directors, or stockholders of the organization. 
A. Duties 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job duties. The Petitioner's description of the job duties must clearly 
describe the duties to be 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). 
First, the Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
described in the statutory definitions of managerial or executive capacity. 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 1533. 
On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner stated: 
The Beneficiary in the capacity of the General Manager will be responsible for 
defining and directing new strategies for the company's business tools to achieve 
strategic sales and marketing goals. Also, the Beneficiary will be in charge of the 
company's management and will oversee compliance with commercial, logistics, and· 
environmental aspects of its products and services. 
The Petitioner submitted a chart showing the Beneficiary's duties, and estimates of how much time 
the Beneficiary would spend on each duty during the upcoming year, noting that the time devoted to 
each duty would change over time. The chart below includes a summary of the range of percentages 
provided for each job duty. ' 
Establish and carry out the Petitioner['s] goals, policies, and procedures; 10-20% 
Direct and oversee Petitioner's financial and budgetary activities 9-25% 
Manage general activities related to selling products and providing 10-15% 
services for the Petitioner 
Consult with other executives from the Parent company, staff, and board 5-20% 
members about general operations; 
Establishes sales strategies and marketing goals, evaluating performance 5-15% 
of the company and its staff, and determines areas of cost reduction and 
program improvement; 
Implements the corporation's accounting practices and financial policies, 10-30% 
analyzing reports, audits, deciding investment risks, budget, allocation of 
resources 
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Matter of A-D-A-G- LLC 
Engages in long-range planning, develops strategies and programs to the 5-15% 
company's expansion plans, directs market research, and identifies 
business opportunities in the U.S. 
Negotiate or approve contracts and agreements 5-20% 
Hiring and training professionals to work Ill the company and 5-15% 
establishing their duties and responsibilities; 
Analyzing financial information, such as pnce, future trends, and 5-10% 
investment risks, making investment decisions, estimating forecast of 
business and preparing plans of action 
Directing efficacy of wholesale, export and distribution activities of 5-20% 
company's products and directing dissemination of technical support 
service in accordance with corporate marketing strategy. 
The Director issued :a request for evidence (RFE). The Director stated that the Petitioner had not 
shown that, during its first year of operations, the Petitioner had developed to a point that it could 
support a primarily managerial or executive position. The Director also asked the Petitioner to 
specify whether it seeks to employ the Beneficiary as a manager or as an executive. The terms are 
not interchangeable, and there is no provision for eligibility based on a combination of factors from 
the two definitions. 
In response, the Petitioner submitted the same list of responsibilities and time percentages. The 
Petitioner did not specify whether it seeks to employ the Beneficiary as a manager or an executive. 
In denying the petition, the Director found the job description to be generic, having little specific 
bearing on the Beneficiary's position and actual duties within the Petitioner's business. 
On appeal, counsel submits a revised job description, stating: 
The beneficiary will be exercising his [sic] discretionary authority in managing and 
establishing sales strategies and marketing goals, evaluating performance of the 
company and its staff, and determining areas of cost reduction and program 
improvement, as well as negotiating or approving contracts and agreements. 
In addition,,-the Beneficiary will identify new markets for penetration and act as 
liaison with distributors to assure that these markets are accessed; and will be 
analyzing financial information, such as price, future trends, and investment risks, 
making investment decisions, estimating forecast of business and preparing plans of 
action. 
Please see below a chart with the percentage of the time the beneficiary will 
approximately expend in each duty: 
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Matter of A-D-A-G-LLC 
Evaluating import/export department performance, determining Up to 20-25% 
areas of cost reduction and program improvement. 
Formulating and implementing import/export legal compliance Up to 15% 
policies and procedures. 
Engaging in long-range planning and identifying foreign business Up to 20% 
opportunities. International travels. 
Hiring and training professionals to work in the company and Up to 10% 
establishing their duties and responsibilities 
Managing employees and revtewmg records, policies and Up to 10% 
procedures 
Analyzing import/ export reports, such as shipment fees and Up to 25% 
services costs, tax transactions, and operations risks, estimating 
forecast of business and prepanng plans of action, making 
decisions. 
Acquisition of new clients and business relationships Up to 5% 
The new description is deficient for several reasons. It appears only in a statement signed by 
counsel, on counsel's letterhead, with no attestation or corroboration by the Petitioner. The 
unsupported assertions of counsel do not constitute evidence. See, e.g., Matter of Obaigbena, 
19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, ?06 (BIA 1980). 
Also, regardless of the source, the new job description is very different from the earlier version, in 
ways that cannot be attributed simply to a difference of perspective. The new description indicates 
that the Beneficiary would spend up to 65% of her time on tasks relating to the "import/export 
department," but the Petitioner has no import/export department. Also, the new job description and 
accompanying commentary repeatedly refer to the female Beneficiary with masculine pronouns. It 
is not evident that the new statement on appeal describes the same job that the Petitioner had 
previously described.2 The submission of two significantly different descriptions for the same 
position raises questions of credibility. Doubt cast on any aspect of the petitioner's proof may lead 
to a reevaluation ofthe reliability and sufficiency of the remaining evidence offered in support ofthe 
visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
The Director correctly found that the Beneficiary's original job description lacked details about the 
Beneficiary's specific duties. The Petitioner has not overcome this finding on appeal by submitting 
an almost entirely different job description. 
The original job description is deficient for several reasons. The Petitioner did not explain the 
difference between "deciding investment risks . . . [and] allocation of resources" and "[a ]nalyzing 
2 
Given these discrepancies, it may also be significant that counsel's brief is dated October 15, 2012, whereas the petition 
was filed, denied, and appealed in 20 16. 
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Matter of A-D-A-G- LLC 
... investment risks [and] making investment decisions," which it listed as separate items. Several 
of the duties lack details. For example, the assertion that the Beneficiary will "[m]anage general 
activities related to selling products and providing services for the Petitioner" does not tell us what 
this duty would entail. The description refers to "[h ]iring and training professionals" but, as we will 
explain further below, there is no evidence that the company will employ professionals subordinate 
to the Beneficiary. 
The Petitioner bears the burden of documenting what portion of the Beneficiary's duties will be 
managerial or executive and what proportion will be non-managerial or non-executive. See Republic 
of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991 ). Absent a clear and credible breakdown of 
the time spent by the Beneficiary performing well-defined tasks, we cannot determine what 
proportion of the duties would be managerial or executive, nor can we deduce whether the 
Beneficiary is primarily performing the duties of a function manager or executive. IKEA US, Inc. v. 
US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
In the same appellate brief, counsel for the Petitioner also asserts that "[ s ]pecial rules are 
applicable ... in 'new office' situations." This proceeding, however, does not involve a new office 
petition. Rather, the Petitioner had previously tiled a new office petition, and ~u.s. Citizenship and 
Immigration Services (USCIS) approved that petition. The Petitioner now seeks to extend the 
Beneficiary's existing L-1A nonimmigrant status. Throughout this proceeding, the Petitioner has 
referred to its first year of operations in the future tense, while at the same time submitting 
documents (such as invoices dating back to February 2015) indicating that the Petitioner has been 
doing business for more than a year. 
The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows the intended U.S. operation 1 year within 
the date of approval of the petition to support an executive or managerial position. There is no 
provision in USCIS regulations that allows for an extension of this 1-year period. If the 
Beneficiary's duties were not primarily those of a manager or executive at the time of filing this 
extension request, then USCIS cannot extend the Beneficiary's L-1 A nonimmigrant status. The 
Petitioner's previous status as a new office does not entitle the Petitioner to special consideration 
now. 
The Petitioner has not overcome the Director's finding that the submitted descriptions of the 
Beneficiary's duties do not establish eligibility as a manager or executive. 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including 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. 
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Matter of A-D-A-G- LLC 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See sections 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. The 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." 3 Section 101(a)(44)(A) of the Act; 8 C.F.R. 
§ 214.2(1)(1 )(ii)(B)( 4). If a petitioner claims that a beneficiary directly supervises other employees, 
those subordinate employees must be supervisory, professional, or managerial, and the beneficiary 
must have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. Sections 10l(a)(44)(A)(ii)-(iii) ofthe Act; 8 C.F.R. §§ 214.2(l)(l)(ii)(B)(2)-(3). 
On Form I-129, the Petitioner stated that it had five employees in the United States, a number 
confirmed by payroll records from April 2016. The Petitioner submitted two organizational charts, 
one of which showed this structure: 
General Manager [the Beneficiary] 
Operational [or Operations] Manager 
Warehouse Specialist 
Administrative Assistant 
2 Sales Representatives 
[ 1 hired, 1 vacant] 
A second organizational chart, projecting the company's structure at "the end of the first year of full 
operations," showed the same five existing employees, plus vacancies for a "finance assistant" and 
an indeterminate number of additional sales representatives. 
As noted above, the Beneficiary's stated duties include "[i]mplement[ing] the corporation's 
accounting practices" and "[a]nalyzing financial information." The Petitioner did not explain who 
compiled and presented that information in the absence of the yet-to-be-hired finance assistant. 
Preparation of financial information is administrative rather than managerial or executive. Because 
the Petitioner is no longer a new office, we will not consider claims regarding future hiring. The 
Petitioner m~st establish eligibility at the time of filing the nonimmigrant visa petition and must 
continue to be eligible for the benefit through adjudication. 8 C.F.R. § 1 03.2(b)(l). The anticipation 
of future qualifying circumstances cannot establish eligibility at the time of filing. See Matter (~f 
Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'! Comm'r 1978). ' 
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. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a United States baccalaureate degree or its foreign equivalent 
is the minimum requirement for entry into the occupation"). Section I 0 I (a)(32) of the Act, 8 U.S.C. § 1101 (a)(32), 
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." 
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Matter of A-D-A-G- LLC 
The Petitioner submitted capsule job descriptions for the subordinate employees. The only 
subordinate not identified as a front-line employee with an operational or administrative role was the 
operations manager, with the following stated duties: 
Oversee the operation and profitability of the company ensuring rapid response and 
high client satisfaction levels through the management of company staff and 
resources, in accordance with the direction of the General Manager. Locate, select, 
and procure merchandise for resale, representing management in purchase 
negotiations. 
Like the Beneficiary's own job description, the above description lacks detail and does not appear to 
correspond to the petitioning company. The reference to locating merchandise and negotiating its 
purchase does not take into account the stated purpose of the company, which is to market the 
products manufactured by its foreign affiliate. Photographs of the Petitioner's warehouse confirm 
that all the identifiable products on the shelves were manufactured by the foreign affiliate. In 
addition, the position description for the warehouse specialist stated that this employee "assists the 
materials manager," while the job description for the proposed finance assistant refers to this 
position's oversight of "dispatchers." The Petitioner has not shown that it employs or plans to 
employ a materials manager or dispatchers, leaving question as to the accuracy of the descriptions 
provided for these employees. 
In the RFE, the Director found that none of the Beneficiary's subordinates work in professional 
occupations, and that only one, the operational manager, had supervisory responsibilities. The 
Director stated that the Petitioner had not shown that the Beneficiary's oversight of the company's 
small staff makes her duties primarily those of a manager or executive. The Director asked for 
additional information about the Beneficiary's subordinate staff. 
In response, the Petitioner submitted payroll documents and a new organizational chart, showing that 
the Petitioner had added a marketing manager and a second sales representative, both hired after the 
petition's May 2016 filing date. The new chart also showed the administrative assistant as being 
subordinate to the operations manager, which the earlier chart did not show. The Petitioner 
submitted a copy of a "Bachelor of Social Communication" diploma issued to its new marketing 
manager, along with evidence that it hired this employee in July 2016, nearly 2 months after the 
petition's filing date. The position did not exist at the time the Petitioner filed the petition; it 
appeared on neither of the two organizational charts submitted initially. Therefore, the Petitioner's 
subsequent creation of the position cannot retroactively qualify the Beneficiary as of the petition's 
filing date. A visa petition may not be approved based on speculation of future eligibility or after a 
petitioner or beneficiary becomes eligible under a new set of facts. See, e.g, Matter ofMichelin Tire 
Corp., 17 I&N Dec. at 248; Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm'r 1971). 
In the denial notice, the Director concluded that the Petitioner had shown that one of the 
Beneficiary's subordinates is a supervisor, but that the Petitioner had not established that the 
Beneficiary's oversight of that one supervisor would occupy the majority of her time. On appeal, the 
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Matter of A-D-A-G- LLC 
Petitioner asserts that the Beneficiary's subordinate staff~ including newly hired employees, will 
relieve her from performing the day-to~day operations of the business. As discussed above, changes 
to the Petitioner's staffing after the filing of the petition cannot establish eligibility at the time of 
filing as required by 8 C.F .R. § 103 .2(b )( 1 ). 
The organizational chart shows that the Beneficiary had one subordinate (specifically, the operations 
manager) with subordinates of his own at the time of filing. The Petitioner has not established that 
the Beneficiary's primary duty is oversight of this one supervisor (whose own duties are 
questionable, as we have discussed). The Beneficiary's two conflicting job descriptions contain no 
discussion of subordinates except to refer to "[h]iring and training professionals." As explained 
above, the Petitioner has not shown that any of the Beneficiary's subordinates qualify as 
professionals. 
The term "function manager" applies generally when a beneficiary does not primarily supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an 
"essential function" within the organization. See section 10l(a)(44)(A)(ii) of the Act. The term 
"essential function" is not defined by statute or regulation. If a petitioner claims that a beneficiary 
will manage an essential function, a petitioner must clearly describe the duties to be performed in 
managing the essential function, i.e., identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of a beneficiary's daily duties dedicated to 
managing the essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, a petitioner's 
description of a beneficiary's daily duties must demonstrate that the beneficiary will manage the 
function rather than perform the duties related to the function. · 
As noted above, the Petitioner has provided inconsistent accounts of the Beneficiary's intended 
duties for the petitioning company. Because the Petitioner has not answered the Director's question 
as to whether it seeks to employ the Beneficiary as a manager or executive, the Petitioner has 
advanced no coherent claim that the Beneficiary will serve as a function manager, and the Petitioner 
has not identified any essential function that the Beneficiary would manage. 
The statutory 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, 8 U.S.C. § 1101(a)(44)(B). 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 organization must have a subordinate level of managerial employees for a beneficiary to direct 
and a beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of tqe 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 an 
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." !d. 
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Matter of A-D-A-G- LLC 
In this instance, the Petitioner has not shown the existence of a complex organizational hierarchy or 
shown that her subordinates include layers of management (the use of managerial titles is not 
sufficient in this regard). As noted above, although the Director instructed the Petitioner to specify 
whether it seeks to employ the Beneficiary as a manager or as an executive, the Petitioner has never 
answered this query, and has not put forward any specific argument to show that the Beneficiary 
qualifies for classification as an executive. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS must 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 petitioning entity is still at an early stage of development, but the 1 year allowed for 
the formation of a new office has elapsed, and therefore the Petitioner must show that it is able to 
support a managerial or executive position. The Petitioner has not clearly described the 
Beneficiary's duties nor has it established that the company has reached a point where it requires the 
Beneficiary to perform primarily managerial or executive duties. The roles listed on the 
organizational charts are in doubt as well; submitted sales invoices show the initials of several 
employees, with a number of different claimed titles, as "sales representatives," indicating that most 
of the staff directly performs duties related to sales and/or order fulfillment. The record does not 
contain sufficient, consistent information regarding the four subordinate employees to establish that 
they would relieve the Beneficiary from significant involvement in the day-to-day operations of the 
company as of the date of filing. 
The numerous deficiencies and discrepancies in the record, already discussed above, preclude a 
finding that the Petitioner has met its burden to establish that it will employ the Beneficiary in a 
managerial or executive capacity. 
III. CONCLUSION 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-D-A-G- LLC, ID# 223959 (AAO Feb. 22, 2017) 
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