dismissed L-1A Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 25693970 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 20, 2023 
Form 1-129, Petition for a Nonimrnigrant Worker (L-lA Manager or Executi ve) 
The Petitioner, a software development company , seeks to temporarily employ the Beneficiary as its CEO 
and project manager under the L-lA nonimmigrant classification for intracompany transferees . under the 
L-lA nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act 
(the Act) section 10l(a)(l5)(L) , 8 U.S.C. § l 101(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 Texas Service Center denied the petition , concluding that the record did not 
establish that the Beneficiary would be employed in the United States in a managerial capacity . The 
matter is now before us on appeal. 8 C.F .R. § 103 .3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review , 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for the L-lA nonimrnigrant 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)(15)(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) . 
II. ANALYSIS 
The sole issue we will address is whether the Petitioner established that the Beneficiary will be 
employed in the United States in a managerial capacity . The Petitioner does not claim that the 
Beneficiary will be employed in an executive capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act. 
A. Duties 
To be eligible for L-lA nonimmigrant visa classification as a manager, the Petitioner must show that 
the Beneficiary will perform the high-level responsibilities set forth in the statutory definition at 
section 10l(a)(44)(A)(i)-(iv) of the Act. If the record does not establish that the offered position meets 
all four of these elements, we cannot conclude that it is a qualifying managerial position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, 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). In determining whether the Beneficiary's 
duties are primarily managerial, we consider the description of the Beneficiary's job duties, the 
Petitioner's organizational structure, the duties of the Beneficiary's subordinate employees, the 
presence of other employees to relieve the Beneficiary from performing operational duties, the nature 
of the Petitioner's business, and any other factors that will contribute to understanding the 
Beneficiary's actual duties and role with the petitioning organization. 
The Petitioner is a software development company established in 2016 that specializes in the 
development of customer web-based and handheld applications for other businesses. The Petitioner 
stated that the company's function "is to assist corporations, government entities and charitable 
organizations worldwide to solve major business problems." The Petitioner further indicated that its 
focus "is on creating applications that require the capture and processing of data," and that it "provides 
application functionality that is well tested for all user scenarios." 
The Petitioner explained that the Beneficiary has served as its Chief Technology Officer since 2016, 1 
and indicated that he will serve in a managerial capacity "because he will have sole oversight and 
responsibility for critical company functions, and because he will manage professional engineers." 
The Petitioner further stated that the Beneficiary "will (1) hire employees (including Chief Financial 
Officer, a Chief Technical Officer, and a Vice President of Sales), (2) engage in day-to-day 
management of employees, (3) manage the software development process, (4) oversee the 
development of new U.S.-based customer relationships, and (5) strengthen existing relationships with 
current U.S.-based customers. [The Beneficiary] will continue to operate as CTO of the international 
subsidiary company, and remotely manage the Belarus-based employees of [the foreign entity]." 
1 The Petitioner claims that the Beneficiary has managed the U.S. company in this position on a remote basis since 2016. 
2 
In addition, the Petitioner stated that the Beneficiary's main goal in the U.S. will be to set the vision 
for the Petitioner's expanded operations, scale the company's growth, and attract and retain talent. 
The Petitioner claimed that his duties will include the following: 
Employee Hiring and Management 
• Recruit, interview, hire, and supervise 3-5 employees (initially) for expanded United 
States operations. (5%) 
• Continue direct management of 3-4 professional technical employees in the Belarus 
office. (5%) 
• Develop, improve and implement policies and training programs for both U.S. and 
Belarus office. (5%) 
• Evaluate employees, and determine staff salaries, work assignments, and promotions. 
(5%) 
• Set priorities for employees in Belarus office and U.S. office, and schedule project 
resources. (10%) 
• Manage the development team to ensure that client contract obligations are met, that 
software is bug free, and that clients are satisfied. (5%) 
• Oversee new client relationships and contacts. (10%) 
Business Development 
• Perform analysis of competition in the worldwide markets with a focus on the 
Americas, and monitor industry trends and customer feedback to determine direction 
of products and services. (10%) 
• Oversee company expansion within the United States, including logistics and budget, 
and implement plans. (20%) 
• Manage existing client relationships. (20%) 
• Oversee negotiation of software development contracts. (5%) 
The Petitioner also submitted an organizational chart, demonstrating that the U.S. entity has no active 
employees, and a business plan for the U.S. entity. 
In response to the Director's request for evidence (RFE), the Petitioner provided additional details 
regarding the Beneficiary's claimed duties and asserted that more than 50% of the Beneficiary's duties 
would constitute managerial tasks. The Petitioner also provided job descriptions for the proposed 
positions of Chief Financial Officer, Chief Technical Officer, and Vice President of Sales, as well as 
the resume of the Art Director/Fronter Developer in the Belarus office. The Petitioner also claimed in 
response to the RFE that the Beneficiary will maintain oversight of the organization's international 
technical teams. 
In denying the petition, the Director determined that the Petitioner had not submitted sufficient 
evidence to establish that he would be engaged in primarily managerial duties in the United States. 
Specifically, the Director noted the absence of corroborating documentary evidence to support its 
claims. Upon review, we agree with the Director's determination. 
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The above discussed duties suggest the Beneficiary's direct involvement in the business development 
and marketing services of the U.S. entity and leave uncertainty as to whether he will primarily perform 
qualifying managerial duties. Again, the Petitioner must prove that the Beneficiary will primarily 
engage in managerial duties, as opposed to ordinary operational activities alongside the Petitioner's 
other employees. See Family Inc. v. USCIS, 469 F.3d at 1316. We acknowledge that the Petitioner 
states that the Beneficiary will continue to manage and supervise technical projects and oversee 
subordinate professionals abroad who it claims will relieve him from primarily performing 
non-qualifying operational duties. However, the Petitioner has provided little supporting 
documentation to substantiate this assertion. Although the Petitioner submits additional evidence on 
appeal, including the Beneficiary's handwritten statement of duties and copies of email 
correspondence with various foreign employees, this evidence does not demonstrate his claimed 
personnel authority over professional subordinates, his direction of them, and his delegation of 
non-qualifying duties to them. The Petitioner must support its assertions with relevant, probative, and 
credible evidence. See Matter of Chawathe, 25 I&N Dec. at 376. Without sufficient supporting 
evidence, the Petitioner has not sufficiently established that the Beneficiary will primarily engage in 
qualifying managerial tasks, as opposed to non-qualifying duties directly related to the business 
development and marketing duties associated with the U.S. entity. 
Moreover, the record demonstrates that the U.S. entity currently has no employees to relieve the 
Beneficiary from performing non-qualifying tasks. An employee who "primarily" performs the tasks 
necessary to produce a product or to provide services for an entity that is not a new office is not 
considered to be "primarily" employed in a managerial or executive capacity. See, e.g., sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); Matter of Church Scientology Int'!, 19 I&N Dec. 593, 604 (Comm'r 1988). 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual was acting in a managerial 
or executive capacity, the reasonable needs of the organization are taken into account in light of the 
overall purpose and stage of development of the organization. See section 101(a)(44)(C) of the Act. 
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 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." 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(1)(1)(ii)(B)(3). 
The Petitioner provided general organizational charts related to the composition of the U.S. office as 
well as its foreign affiliates. As noted above, the U.S. organizational chart indicates that despite its 
incorporation in 2016, it had no employees at the time of filing. According to the Petitioner, the 
Beneficiary will hire a Chief Financial Officer, Chief Technical Officer, and Vice President of Sales, 
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and ultimately oversee those positions. The Petitioner further claimed that the Beneficiary will 
"continue [the] direct management of 3-4 professional technical employees in the Belarus office," and 
"will maintain oversight of [the organization's] international technical teams responsible for carrying 
out the technical development work of [the Petitioner's] organization." 
First, the Beneficiary cannot qualify as a personnel manager based on the oversight of subordinate 
supervisors or managers abroad, as the provided foreign organizational charts are vague and do not 
reflect that he will continue to supervise these employees. On appeal, the Petitioner emphasizes that 
the Beneficiary will continue to supervise professional subordinates and that he holds personnel 
authority over them, and submits additional evidence in support of the claimed foreign staffing levels 
such as pay stubs, CV s, and position descriptions for several claimed subordinates. Although we 
acknowledge the Petitioner's submission of this new evidence on appeal, the Petitioner neglected to 
provide this evidence when it was first requested in the RFE. Where, as here, a petitioner has been 
put on notice of a deficiency in the evidence and has been given an opportunity to respond to that 
deficiency, we will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 
I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the 
Petitioner had wanted the submitted evidence to be considered, it should have submitted the documents 
in response to the Director's request for evidence. Id. Under the circumstances, we need not and do 
not consider the sufficiency of the newly submitted evidence. 
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." 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, however, did not submit supporting documentation to corroborate that he oversaw 
teams of professionals abroad who relieved him from performing non-qualifying operational duties 
directly related to the provision of services to clients, nor did it provide supporting evidence to 
demonstrate that he held personnel authority over subordinate professionals. Further, although the 
Petitioner provided general duty descriptions for the various professional positions the Beneficiary 
was claimed to supervise, it also did not submit other substantiating evidence, such as documentation 
to establish that these employees held bachelor's degrees. The Petitioner submitted insufficient 
evidence reflecting the Beneficiary's authority to delegate non-qualifying operational duties to his 
claimed subordinates abroad. Therefore, the Petitioner did not sufficiently establish that the 
Beneficiary will act as a personnel manager by virtue of supervising foreign subordinate employees. 
Regarding the staffing of the U.S. office, the Petitioner confirmed that there are currently no employees 
and the Beneficiary will be tasked with recruiting and hiring personnel. The Petitioner, however, must 
establish that all eligibility requirements for the immigration benefit have been satisfied from the time 
of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). A visa petition may not be 
5 
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 
1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). Here, while the Petitioner asserts 
that the Beneficiary will ultimately hire numerous employees to relieve him from performing 
non-qualifying tasks, the record at the time of filing does not establish that the Beneficiary will be 
primarily managing the organization, or primarily managing its business development and marketing 
functions. Rather, the record indicates that the Beneficiary will primarily be engaged in the 
performance of non-qualifying marketing and related tasks until such time that a subordinate staff of 
managers or professionals is hired to relieve him. 
On appeal, the Petitioner asserts that the Beneficiary's reliance on support staff abroad is akin to the 
fact pattern in Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). We disagree. 
Matter of Z-A- involved a beneficiary whose managerial responsibilities encompassed "eight staff 
members within the parent company's headquarters office in Japan [who] exclusively support the 
Beneficiary's work" (emphasis added). Id. at 2. In addition to not establishing that the claimed foreign 
subordinates are professionals, the Petitioner has also not shown that they function as his subordinates 
in the same way as the subordinate staff members in Matter of Z-A-. If a petitioner claims that it has 
a reasonable need for foreign staff to perform some of the operational tasks associated with its U.S. 
business, it has the burden of documenting those foreign employees and the duties they perform for 
the U.S. entity. Id. As noted above, the provided foreign organizational charts are vague and do not 
reflect that the Beneficiary will continue to supervise these employees. Although the Petitioner 
supplements the record with new evidence regarding the staffing of its foreign offices on appeal, 
The Petitioner also did not establish that the Beneficiary managed an essential function pursuant to 
section 10l(a)(44)(A)(ii) of the Act. 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 
10l(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 "(l) 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). 
The Petitioner claimed that the Beneficiary will be managing the software development 
process/department and the sales organization that focuses on selling the Petitioner's software 
development services to U.S. customers. According to the Petitioner, both of these functions are 
essential "because the company develops software services, and to make money the services need to 
be sold to customers." The Petitioner claimed that the Beneficiary will manage these functions as well 
as oversee the personnel "based both in [its] foreign affiliate offices and in the U.S. office (once hired) 
that will carry out the performance of the function." 
The Petitioner did not sufficiently demonstrate that the Beneficiary will act as a function manager. As 
we have noted, the Petitioner provided evidence indicating the Beneficiary's performance of 
non-qualifying operational duties directly related to the company's marketing and business 
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development. Again, the Petitioner did not submit supporting documentation to substantiate that the 
Beneficiary was primarily engaged in managing a function rather than performing it. The Petitioner 
claims that the Beneficiary manages teams of professionals abroad who relieve him from performing 
non-qualifying operational tasks, but it provided little evidence to substantiate the Beneficiary's 
direction of these employees or his delegation of tasks to them. Therefore, the Petitioner has not 
sufficiently established that the Beneficiary's function is well defined and that he has senior level 
discretionary authority over it. 
III. CONCLUSION 
For the foregoing reasons, the Petitioner has not established that the Beneficiary will be employed in 
a managerial capacity. 
ORDER: The appeal is dismissed. 
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