dismissed L-1A Case: Software Development

U.S. Citizenship 
and In1n1igration 
Services 
MATTEROFN-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 13, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software development and IT operations company, seeks to temporarily employ the 
Beneficiary as a "Senior VoIP Engineer" in its new office 1 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. § l 10l(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 it satisfied the following eligibility criteria: (1) the Petitioner formed 
a qualifying relationship with the Beneficiary's foreign employer; (2) the Beneficiary was employed 
abroad in a managerial capacity; and (3) the new office would support the Beneficiary in a 
managerial or executive position within one year of the petition's approval. 
On appeal, the Petitioner points out that where one entity - in this instance the foreign employer - is 
claimed as the parent in a parent-subsidiary relationship, only the subsidiary entity's ownership is 
relevant for the purpose of establishing the existence of a qualifying relationship. The Petitioner 
contends that the Director erroneously focused on the foreign parent's ownership in concluding that 
a qualifying relationship does not exist between that foreign and petitioning entities. Regarding the 
two remaining issues, the Petitioner contends that the Beneficiary assumed the role of a function 
manager in his position abroad and that he would continue to assume a similar position during his 
employment with the U.S. entity. 
Upon de nova review, we find that the Petitioner has not established that the Beneficiary was 
employed abroad in a managerial capacity. Therefore we will dismiss the appeal.2 However, the 
1 The term "new office" refers to an organization which has been doing business in the United States for less than one 
year. 8 C.F.R. § 214.2(l)(l)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
2 Because of the dispositive effect of the finding of ineligibility based on the lack of sufficient evidence showing that the 
Beneficiary was employed abroad for one year in a managerial capacity, we will reserve the remaining issue that pertains 
to the Beneficiary's proposed employment with the petitioning entity. 
Matter ofN-, Inc. 
Petitioner has overcome the Director's finding on the issue of a qualifying relationship. As such, we 
will withdraw that issue as a basis for dismissing the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-IA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 8 C.F.R. § 214.2(1)(3)(v)(B). 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 submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and 
scope of the entity, its organizational structure, its financial goals, and the size of the U.S. 
investment. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
11. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The Petitioner claims that the Beneficiary assumed the role of a function manager during his 
employment abroad. 
"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. 
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 "(I) the function 
is a clearly defined activity; (2) the function is 'essential,' i.e., core to the organization; (3) the 
beneficiary will primarily manage, as opposed to 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., AdoptedDecision2017-05 (AAONov. 8, 2017). 
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Matter ofN-, Inc. 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary performed certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the 
Beneficiary was primarily engaged in managerial duties, as opposed to ordinary operational 
activities alongside the foreign entity's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The description of the job duties must clearly describe the duties performed by the Beneficiary and 
indicate whether such duties were in a managerial 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 the Beneficiary's subordinate employees, the presence of other employees to relieve the 
Beneficiary from performing operational duties, the nature of the business, and any other factors that 
will contribute to understanding the Beneficiary's actual duties and role in that business. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the foreign business and its staffing levels. 
A Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
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 10l(a)(44)(C) of the Act. 
In a supporting cover letter, the Petitioner stated that the Beneficiary has been employed abroad as 
the foreign entity's "Senior VoIP Engineer" since October 2015. It stated that in the course of 
managing telecommunications network and software development projects related to "Voice over 
Internet Protocol" ("VoIP"), the Beneficiary led a team of three telephone engineers. The Petitioner 
explained that this team is responsible for deploying new devices and software upgrades and 
troubleshooting service issues. 
The Petitioner also provided a business plan containing various organizational charts for the foreign 
entity. One chart included the Beneficiary and depicted his position within a division of the foreign 
entity's organizational hierarchy. Despite claiming that the Beneficiary operates at a senior level 
with respect to the function he manages, the submitted chart does not support this claim and instead 
shows the Beneficiary as second from the bottom of the divisional hierarchy with respect to the 
function. Namely , the chart shows a general manager at the top of the hierarchy , followed by a 
CEO, who is shown as overseeing a senior director of operations , followed by a director of 
operations , who oversees the Team Lead ," the Beneficiary ' s immediate superior. The 
Beneficiary ' s placement is at the tier that is second from bottom and he is depicted as overseeing 
three employees who are on the bottom tier, two "telephone engineers ", and 
and one "senior telephone engineer ," The Petitioner did not explain the 
reason for the distinction between "telephone engineer " and "senior telephone engineer " or claim 
that someone other than the Beneficiary oversees the work of these three individuals. 
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Matter ofN-, Inc. 
The Petitioner did not provide separate job descriptions for the telephone and senior telephone 
engineer positions; rather, it provide one broad job description stating that the telephone engineers 
collaborate with development teams and are responsible for searching and correcting technical 
problems and for "servicing production and pre-production environments for distributed IP 
telephonic system development using various technologies." Although the Petitioner provided 
resumes for these three individuals, none described the job duties they performed in their respective 
positions and only listed each employee's position title and dates of employment with the foreign 
entity. As such, it is unclear how, if at all, the Beneficiary's claimed subordinates helped to relieve 
the Beneficiary from having to primarily perform non-managerial duties. 
In a separate organizational chart the Petitioner offered a different cross section of the foreign entity, 
which included an organizational hierarchy of department and identified his 
position as "TelcoSysOPS Tech Lead." In contradiction with the previously described chart, this 
chart included and as direct subordinates of even though 
these two individuals were depicted as the Beneficiary's subordinates in the other chart. Further, the 
titles of and are different on the two charts. This chart identified 
as "Telco Engineer" and was identified as "DevOPS Engineer." The 
Petitioner did not explain why these two individuals were listed as employees in two different 
departments where they had different position titles and were subject to different leadership 
personnel. The Petitioner must resolve this incongruity in the record with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Lastly, the Petitioner offered a variety of email communications demonstrating the Beneficiary's 
discretionary authority with respect to the function he is claimed to have managed. We note, 
however, that the tag line in the email sent by the Beneficiary prior to October 2017 identified the 
Beneficiary's position title as "VoIP Engineer," rather than "Senior VoIP Engineer," as he was 
identified in emails he sent after October 2017 and in the initial support letter. We further note that 
none of the communications are between the Beneficiary and his claimed subordinates. As such, the 
emails do not support the claim that the Beneficiary relied on three telephone engineers to relieve 
him from having to primarily perform the non-managerial tasks associated with the essential 
function he is claimed to manage. 
The Director issued a request for evidence (RFE) noting that the record did not adequately describe 
the job duties of the Beneficiary's subordinates or explain how they relieved the Beneficiary from 
performing non-managerial job duties. The Petitioner was also asked to provide an organizational 
chart or diagram showing the foreign entity's organizational structure and staffing levels and to list 
the employees that are in the Beneficiary 's immediate department or team. 
In a response statement, the Petitioner claimed that the Beneficiary "oversees the department 
responsible for developing VoIP technology " asserting that such technology is an essential service 
offered to its clients. The Petitioner further stated that the Beneficiary functions at a senior level 
with respect to this function and pointed out that his position is "only two (2) direct levels below the 
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Matter ofN-, Inc. 
Director of Operations for the entire organization." The Petitioner resubmitted the organizational 
chart that depicted the management and staffing structures of the department where the Beneficiary 
was depicted as the "Senior VoIP Engineer" with three telephone engineers on the tier below him. 
The Petitioner also offered a second response statement from who was 
identified as the Team Lead," the Beneficiary's direct superior. Although 
stated that engineers comprising the "Telco Network Team" executed projects for which the 
Beneficiary was responsible and thereby supported the Beneficiary's function management role, this 
information was not corroborated in the submitted organizational charts. Further, did 
not clarify how "Tech Lead" of the team of Telco engineers, supported the 
Beneficiary's position, nor did he explain why two members of team appeared in two 
different departmental charts or why their respective position titles did not consistently carry over 
from one chart to the other. Moreover, if all members of the Telco team were responsible for 
carrying out projects in support of the Beneficiary's function, as explained, it is 
unclear why only two members of that team were included in the Beneficiary's departmental chart. 
further claimed that the Beneficiary collaborated "with other internal teams and third 
parties," but he did not specify which "other" teams or "third parties" were part of the collaboration, 
nor did he state what duties those "other" teams and "third parties" performed to relieve the 
Beneficiary from having to primarily perform non-managerial job duties. Likewise, the Petitioner 
did not provide more detailed job duty descriptions for the Beneficiary's claimed subordinates, as 
instructed in the RFE. Failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). 
The response also contains what the Petitioner described as "training materials" that the Beneficiary 
used to train "subordinate professional employees carrying out tasks related to the essential function 
he manages." The Petitioner did not, however, substantiate the claim that the target audience of the 
training consisted of professionals who carried out the duties of the Beneficiary's essential function, 
nor did the Petitioner establish that training subordinates is a managerial, as opposed to an 
operational, job duty. The Petitioner must support its assertions with relevant, probative, and 
credible evidence. See Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
Although the Petitioner also provided additional email communications that the Beneficiary sent to 
the Telco Network team in his capacity as "Senior VoIP Engineer," the earliest of those emails was 
sent in October 2017; none of emails that were sent prior to that date included the word "Senior" as 
part of the Beneficiary's job title.3 Thus, the submitted emails do not support the claim that the 
Beneficiary has been employed in the position of "Senior V oIP Engineer" since October 2015. 
Moreover, the emails indicate that there is cause to question whether the Beneficiary held the 
3 The Petitioner did not make a distinction between "VoIP Engineer " and "Senior VoIP Engineer," nor did it claim that 
the position of "VoIP Engineer " fits the criteria of a function manager. 
5 
Matter ofN-, Inc. 
position that is claimed to be managerial for at least one year out of the three years that preceded the 
filing of this petition. 4 
The Director denied the pet1t10n concluding that the Petitioner did not provided requested 
information clarifying how the Beneficiary's subordinate staff relieved him from having to perform 
non-managerial job duties. 
On appeal, the Petitioner offers the previously submitted training materials, email communications, 
and organizational charts, contending that the Director did not consider these documents prior to 
denying the petition. We disagree with the Petitioner and find that the resubmitted evidence was 
insufficient to support the claim that the Beneficiary's foreign employment fit the criteria of a 
function manager. 
Although the Petitioner adequately pointed to an essential function and provided evidence showing 
that the Beneficiary's position was likely associated with that function, it provided inconsistent 
organizational charts and did not adequately demonstrate that the Beneficiary's claimed subordinates 
relieved him from having to perform the underlying duties of the function he is claimed to have 
managed. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. 
See, e.g., sections 10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); Matter of Church Scientology Int 'l, 19 I&N Dec. 593, 
604 (Comm'r 1988). 
Lastly, the record does not adequately support, and in fact appears to contradict, the Petitioner's 
claim as to when the Beneficiary actually assumed his position as "Senior VoIP Engineer." Despite 
claiming that the Beneficiary assumed that position in October 2015, a number of the previously 
submitted email communications indicate that the Beneficiary assumed the position of "VoIP 
Engineer" until sometime in 2017 when his position title changed to include the term "Senior" as 
part of his job title. The Petitioner neither acknowledged nor addressed this anomaly, which 
undermines its claim as to how long the Beneficiary occupied his current position as the foreign 
entity's "Senior VoIP Engineer." 
In light of the deficiencies described above, we find that the Petitioner has not established that the 
management and staffing hierarchy of the Beneficiary's department and other departments within the 
same organization were sufficient to relieve the Beneficiary from having to allocate his time 
primarily to performing the non-managerial tasks associated with the VoIP development function. 
4 The Petitioner is silent as to the Beneficiary's position as a "VoIP Engineer," which appears to have preceded his 
current position as "Senior VoIP Engineer." 
Matter ofN-, Inc. 
B. Duties 
We also reviewed the Beneficiary's job description and find that the Petitioner provided insufficient 
evidence to establish that the Beneficiary performed primarily managerial job duties in his position 
with the foreign entity. 
In the initial support letter, the Petitioner stated that the Beneficiary directed "technical 
implementation of various complex telecommunications network and software projects," and 
managed "operational work of projects to redesign and improve current voice communications and 
multimedia network systems." The Petitioner also provided a job duty breakdown stating that the 
Beneficiary would allocate 45% of his time to managing operational work to support production 
stability by overseeing and monitoring project roadmaps, attending meetings with engineering 
teams, and directing professional subordinates to carry out projects and implement new production 
processes. The Petitioner stated that another 40% of the Beneficiary's time would be spent leading 
complex technical projects by monitoring change requests and approving network changes, 
reviewing network design and configuration implementation, and making technical 
recommendations and the remaining 15% of his time would be spent managing professional 
engineers by instructing them to diagnose and troubleshoot service issues and assigning on-call 
support rotations. 
In response to the RFE, the Petitioner provided the following list of the Beneficiary's job duties with 
the foreign entity: 
• Review tasks he assigns to other employees; 
• Review and discuss "escalations" with members of his team; 
• Review, plan, and schedule change requests; 
• Provide feedback and respond to questions; 
• Conduct weekly reviews of the "Roadmap and Performance Review portal"; 
• Provide written direction to those working on his projects; and 
• Stay informed of current VoIP changes and trends. 
Although the Petitioner's business plan contains a similar percentage breakdown describing the 
Beneficiary's position with the foreign entity, it lists job duties that were not included in the prior job 
description and are not readily identified as duties performed in the course of managing an essential 
function. Namely, the Petitioner stated that the Beneficiary is involved in implementing networking 
changes, designing "HA carrier configurations," participating in "next generation design and 
architecture," performing "forecast and failover modeling analysis, diagnosing and troubleshooting 
to resolve issues, and participating in the on-call support rotation. Although the Petitioner assigned a 
percentage of time to each of three main categories, it did not assign specific time allocations to 
individual job duties. It is therefore unclear how much time the Beneficiary spends executing these 
non-managerial functions. 
.
Matter ofN-, Inc. 
In the foreign entity's RFE response statement, stated that the Beneficiary manages 
projects that are carried out by the "Telco Network Team" and collaborates with "other internal 
teams and third parties." The Petitioner does not impart new information about the Beneficiary's 
current position; instead it restates one of the earlier job descriptions, which focused on the 
Beneficiary's discretionary authority but did not establish the managerial nature of some of the job 
duties that were listed in the business plan's foreign job description. 
On appeal, the Petitioner disputes the denial, restating one of the previously submitted job duty 
breakdowns and asserting that the job description was adequately detailed to support the claim that 
the Beneficiary performed primarily managerial job duties during his foreign employment. The 
Petitioner also contends that performing some operational or administrative duties would not 
preclude the Beneficiary from establishing eligibility so long as those non-managerial tasks do not 
occupy the majority of his time. Here, however, it is unclear how much time the Beneficiary 
specifically devotes to the non-managerial job duties associated with the development of VoIP. As 
noted earlier, the job description in the business plan, which listed multiple non-managerial tasks, 
assigned a percentage of time only to the three main job categories, not to the individual job duties 
that comprised each category. As such, we cannot determine precisely how much time the 
Beneficiary devoted to performing managerial tasks. In other words, the Petitioner has not 
established that the non-managerial job duties that the Beneficiary performed in his position with the 
foreign entity were only incidental, rather than critical, to the foreign position. We therefore cannot 
conclude that the Beneficiary allocated his time primarily to job duties associated with managing, 
rather than carrying out the underlying duties of, an essential function. 
Ill CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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 ofN-, Inc., ID# 2288671 (AAO Mar. 13, 2019)