dismissed L-1A Case: Software

Non-Precedent Decision of the . . 
Administrative Appeals .Office 
MATTER OF W-USA DATE: JAN. 25, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM l-'129, PETITION FOR A NONIMMIGRANT WORKER. 
The Petitioner, a software company, seeks to temporarily em.ploy the Beneficiary as its chief technical 
officer under the L-1 A nonimmigrant classification for intracompany transferees. Immigration and 
Nationality Act (the Act) section 10l(a)(l5)(L), 8 U.S.C. § 1 I0I(a)(l~)(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 Urtite~ States to work temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition, concludjng that the record did not 
establish, as required, that the Petitioner (I) has a qualifying relationship with the Beneficiary's 
foreign employer, and (2) will employ the Beneficiary in the United States in a managerial or 
executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
·. asserts that the Director erred by not giving suffic_ient consideration to the structure of the 
multinational organization as a whole, and to the Petitionefs reliance on contractors. 
Upon de novo review, we. will dismiss the appeal. We withdraw the Director's finding that the 
Petitioner has not established a qualifying relationship with the Ben_eficiary's foreign employer, but 
we affirm the finding that the Petitioner has not established that it will employ the Beneficiary in a 
managerial or executive capacity. · 
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 101(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 . . The 
petitioner must also establish that the beneficiary's prior education, training, and employment 
qualify him or her to perform the intended services in the· United States. 8 "C,F.R. § 214.2(1)(3). 
The Petitioner does not claim that it .seeks to employ the Beneficiary in an executive capacity. 
Therefore, we restrict our analysis to whether the Petitioner has shown that it will. employ the 
Beneficiary in a managerial capacity. · 
Matter ofW-USA 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
. supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exer~ises d_iscretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A)ofthe Act. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See sections 10l(a)(44)(A)(i) and (ii) of the Act. The Petitioner asserts that 
the Beneficiary will be a function manager, whose managerial role arises. from management of an 
essential function rather than subordinate personnel. 
Based on the statutory definition of managerial 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 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.· 
When examining the managerial or executive capacity· of a given beneficiary, we will look to the 
petitioner's description of the job duties.· The p~titioner'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). · Beyond the required description of 
the job duties, we· examine the compan.y's organizational structure, the duties of a benef:iciary'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 actua_l 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 busin~ss and its staffing levels. 
A Duties· 
The Petitioner stated: 
) 
[The Beneficiary] will be responsible for man~ging the deliv~ry of multiple client 
projects implemented by the [petitioning organization's] distributed team for one of 
our largest customers. In addition, he will supervise the work of several ... teams for 
key customers and will be attending meetings with current and prospective customers 
on a regular basis. He will also lead pre-sales activities and oversee and _manage the 
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Matter of W-USA 
sales and marketing activities. He will be responsible for building teams for the 
projects including hiring US based and remote employees. 
The Petitioner -listed various projects that the Beneficiary would handle in the United States, along . ) 
with his "specific responsibilities on [each] project." The responsibilities for one such project were 
as follows: 
• Presale and sales activities including presenting the company's expertise, 
understanding the customers' problems, creating a vision of the solution, building 
a proof of concept, executing the contract; 
• Building a set-of project teams and management of a prototype creation; 
• Working on product suite roadmaps; 
• Management of resources allocation; 
• Daily communication with the customer; 
• · Management of the customer's expectations and delivery processes[; and] 
• Understanding and us[e] of Key Technologies .... 
The Beneficiary's "specific responsibilities" for another project included, among other elements: 
• Coordination of the marketing activities to build awareness of the product 
• . Conducting sales demonstrations and running the quizzes at key events ... 
• Close communication with sales, marketing, development, design and QA teams 
More broadly, the Petitioner provided the following breakdown of the Beneficiary's responsibilities 
and the approximate time to be devoted to each: 
Manage multiple projects 20% 
,. Supervise projects teams working for company's key customers 15% 
Supervise [the Petitioner's] marketing activities in the U.S. 15% 
Manage pre-sales and supervise[] sales activities · 30% 
Staffing ~f the project teams · 10% 
Conduct interviews with candidates and participate in the overall hiring process 10% 
Within the above categories, the Petitioner provided additional details filling more than three pages. 
Under "Manage multiple projects," for instance, the Petitioner specified the following duties: -
• Oversee .the delivery of group projects for some of the biggest clients of the 
company 
• Participate in ~crum meetings to hear updates regarding client projects from 
project managers; monitor 'project delivery process 
• Make resource allocation decisions based· on reports from project managers; 
_adjust allocations as neede9 
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Matter ofW-USA 
• Oversee project manag~rs' communications with clients; ensure[] business. 
requirements clarification and implementation details are timely and effectively 
delivered to clients by his subordinates 
• Manage progress[] on key projects by using [various software applications] to 
track the work of the technical team 
Regarding management of pre-sale and sales activity, the Petitioner listed the following duties: 
• Oversee the Sales Department's sale cycle; review activity and results reports 
submitted by Sales Managers 
• Manage follow-up activities with potential leads; review plans to address clients' 
business needs and provide feedback to Sales Managers 
• Oversee compliance of sales process to the company's practices 
• Oversee and approve business proposals prepared by subordinates and present 
them to key customers 
In the denial notice, the Dire·ctor found that the Beneficiary would predominantly perform _non­
qualifying tasks such as marketing and sales. 
On appeal, the 1 Petitioner asserts that the Director "ignored key words like ·•manage' and 
'supervise,"' which showed that the Beneficiary would oversee, but not perform, the company's 
operational activities. We will address the issue of the organization's staffing below,. noting here 
that the Petitioner claimed only one employee at the time of filing, which leaves open the question of 
who perfom1s basic administrative and clerical tasks for the company. 
B. Staffing 
A given beneficiary is not automatically a function manager simply because he .or she delegates all 
business functions to contractors or other third parties. A petitioner, who bears the burden of proof, 
must also show that the outsourced activity requires managerial oversight, and that the beneficiary 
provides it. In this context, the issue of staffing and the quality and quantity of supporting evidence 
are critical matters. 
The Petitioner has no employees apart from its president, but the Petitioner assertecl that the 
Beneficiary, the chief technical officer, would directly manage four employees at Russian affiliate 
compani'es; seven Russia-based contractors; and five U.S . ..:based contractors. Among these direct 
reports are nine project managers who, the Peti~ioner claims, supervise 148 developers and quality 
assurance engineers. Some of these projeqt managers, according to the Petitioner, are contractors 
who then engage the services of subcontrac'tors, further attenuating the chain of management from 
the Beneficiary to the front-line developers and quality assurance engineers . 
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.J 
Matter of W- USA 
The Director acknowledged that the Beneficiary supervised work by contractors and employees of 
the foreign affiliate, but found that these individuals are not the Petitioner's employees or "part of its 
organizational structure." 
On appeal, the Petitioner cites Matter of Z-A-. Inc., Adopted Decision 2016-02 (AAO Apr. 14, 
2016), which requires us to "evaluate relevant evidence in the -record concerning the reasonable 
needs of the organization as a whole." Id. at 6. The Petitioner contends that "[t]he facts present in 
Matter of Z-A, Inc. are similar [to those in] the instant case," because that petitioner, like this one, 
"relied on subordinates at the related company abroad to support the beneficiary's managerial role." 
In Z-A-, we acknowledged "the Petitioner's substantial evidence relating to the support provided by 
the overseas staff," including "staff members within the parent company's headquarters office in 
Japan [who] also exclusively support the Beneficiary's work" In the present case, such "substantial 
evidence" is lacking. Significantly, the Petitioner has only documented its contracts with five U.S. 
contractors, only a small fraction of the total workforce that the Beneficiary is said to oversee. 
An organizational chart referring to over 100 unnamed support staff is not sufficient to establish a 
foreign workforce said to support the Beneficiary's work. Payroll records from the Petitioner's 
foreign affiliate name only 30 employees, with no indication as to which ones are under the 
Beneficiary's authority. 
Also, the Petitioner has not shown that these claimed foreign workers exclusively support the 
Beneficiary's work, as was the case in Z-A-. In the present case, the foreign employer stated that, 
during his intended assignment in the United States, the Beneficiary "will continue to lead our 
company. in Russia ... and will supervise the Russian employees." The Russian company evidently 
provides the same services as the U.S. company, and the Petitioner has not shown that the Russian 
company provides these services on behalf of the Petitioner rather than its own behalf. The 
Beneficiary's continued role abroad, supervising foreign-based employees· at a foreign-based 
company, is not intrinsically a managerial capacity in the United States, even if the Beneficiary is in 
the United States while supervising those foreign employees. 
Based on the deficiencies discussed above, the Petitioner has not met its burden of proof to establish 
that it intends to employ the Beneficiary in a managerial capacity. ' 
ORDER:· The appeal is dismissed. 
Cite as.Matter of W-USA, ID# 2051067 (AAO Jan. 25, 2019) 
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