dismissed L-1A Case: Solar Energy

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY31,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FORA NONIMMIGRANT WORKER 
The Petitioner, a seller and installer of solar energy systems, seeks to continue the Beneficiary's 
employment as its president under the L-lA nonimmigrant classification for intracompany transferees. 
See Immigration and Nationality Act (the Act) section lOl(a)(IS)(L), 8 U.S.C. § 110l(a)(l5)(L). The 
L-lA classification allows a corporation or other legal entity (including its atliliate 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 the Beneficiary was employed abroad would be employed in the 
United States in a managerial or executive capacity. 
On appeal, the Petitioner states that the Beneficiary has been and will be employed in a managerial 
capacity. The Petitioner contends that the Director's analysis with regard to the proposed position is 
"misguided" because it does not take into account the Beneficiary's lack of an approved 
nonimmigrant visa, which precludes him from remaining in the United States to properly stafT the 
U.S. organization. The Petitioner contends that the Director mistakenly relied on the definition of 
executive, rather than managerial, capacity to assess the Beneficiary's foreign employment and 
erroneously applied the statutory definition of managerial capacity to one of the Beneficiary's 
subordinates- the sales service manager- within the foreign entity. 
Upon de novo review, we will dismiss the appeal. Although we tind that the Petitioner submitted 
sutlicient evidence to establish that the Beneficiary was employed abroad in a managerial or 
executive capacity, 1 we tind that the Petitioner has not overcome the remaining ground for denial 
with regard to the Beneficiary's proposed employment. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
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We will withdraw the Director's finding with respect to the Beneficiary's foreign employment. 
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Matter ojA-, Inc. 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section I 0 I (a)(IS)(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. !d. 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. MANAGERIAL CAPACITY 
The Petitioner claims that the Beneficiary will be employed in a managerial capacity; therefore, we 
will only address this claim in our decision. 
"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 
IOI(a)(44)(A) of the Act. 
When examining the managerial capacity of a given beneficiary, we will review 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 
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 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. Accordingly, we will discuss evidence regarding 
the Beneficiary's job duties along with evidence of the nature of the Petitioner'~ business, its staffing 
levels, and its organizational structure. 
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 the present matter, the Petitioner indicated that it was established in 2007, ten years prior to filing 
this petition, yet it claimed only three employees and no net annual income at the time of filing. In a 
supporting cover letter, the Petitioner stated that it has '.'grown progressively" as a result of a foreign­
based production team upon which it relies to provide its products and services. The Petitioner 
explained that due to the foreign engagements of its full-time manager, it has been unable to reach its 
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"full potential" and has experienced a slow-down in its business development, which resulted in 
"stagnant sales." As a result, the Petitioner looks to the Beneficiary, as a ~ey senior managerial 
employee of the foreign entity, to enhance its competitiveness in the California solar energy market 
based on his knowledge and experience with the foreign entity. 
The Petitioner also provided a business plan in which it stated that the Beneficiary will operate with 
the assistance of two immediate subordinates - an office manager and a sales manager. The 
Petitioner indicated that more employees will be hired as the business grows. The business plan 
includes a "Financial Projection Table," which allocates $500,000 for salaries and wages in 2018, 
but does not provide a breakdown showing individual salaries for each position that will be part of 
the organization. The business plan also includes a "Planned Organizational Chart," which depicts 
the Beneficiary at the top of a hierarchy comprised of two departments - an administration 
department and a sales and marketing department- with a manager heading each department. The 
chart further indicates that the office manager, with a December 2017 projected date of hire, will 
oversee an independent payroll and tax service provider, an office assistant with a November 2017 
projected date of hire, and an accounting clerk with a February 2018 projected date of hire. The 
sales department shows a similar hierarchy with the sales manager, also with a December 20 i7 
projected date of hire, overseeing two sales specialists, a sales engineer, a marketing specialist with a 
January 2018 projected date of hire, and a shipping clerk with a February 2018 date of hire. The 
chart names a total of three employees- two sales specialists and a sales engineer- as the only staff 
the Petitioner had on the date this petition was filed; all other positions were projected to be filled at 
a future date. 
In a request for evidence (RFE), the Director informed the Petitioner that the record did not 
adequately establish that the Beneficiary would be employed in a managerial or executive capacity 
and instructed the Petitioner to provide further evidence to show that the Beneficiary meets the four­
prong statutory criteria. 
In response, the Petitioner provided a statement claiming that the Beneficiary's proposed position 
would be in a managerial capacity. The Petitioner stressed that the Beneficiary would occupy the 
top-most position within its organization, oversee its operations and departments, and direct the 
employment of "qualified staff," including two managers and "other necessary positions" within the 
departments. Although the Petitioner acknowledged that the Beneficiary's two direct subordinate 
managers had not yet been hired, it contends that its organizational chart illustrates a staffing 
structure where the Beneficiary is the "highest level managerial position holder" and is only required 
to manage his immediate subordinates rather than all company employees. We note, however, that 
the projected date of hire for the Beneficiary's "immediate subordinates" was December 2017; 
approximately five months atier this petition was filed. As such, the. only subordinates the 
Beneficiary would have at his disposal are the two sales specialists and one sales engineer, as these 
were the only three positions that were filled at the time offiling. 
In the denial decision, the Director concluded that the Petitioner did not establish that the 
Beneficiary would be employed in a managerial capacity. The Director found that the Petitioner 
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does not have a sufficient staff to relieve the Beneficiary from having to engage in performing its 
daily operational functions and further noted that the Petitioner's organizational structure does not 
establish that the Beneficiary would occupy a managerial position that would be higher than that of a 
first-line supervisor. 
On appeal, the Petitioner accurately points out that staffing levels are only one factor of the analysis 
used to determine whether the Beneficiary will be acting in a managerial capacity. The Petitioner 
asks that we consider its reasonable needs in light of its overall purpose and stage of development. 
See section l0l(a)(44)(C) of the Act. Having considered these factors within the scheme of the 
organization, we find that the Petitioner incorrectly relies on its current phase of development to 
justify its lack of a support stati While the Petitioner's current organizational needs may be 
reasonable based on its phase of operation at the time of filing, those needs will not supersede the 
statutory criteria requiring the Beneficiary to "primarily" perform managerial job duties. See 
sections 10l(a)(44)(A) of the Act. In the present matter, the Petitioner indicated that its business 
was not operating at an optimal level and had experienced a downturn due to certain organizational 
changes that were prompted by the needs of the foreign parent entity. As such, the petition is largely 
based on a projected support staff, including the Beneficiary's direct subordinates and an entire 
administrative staff, which would be hired no earlier than five months after the tiling of this petition. 
Although we acknowledge the Petitioner's submission of a business plan and the various business 
·projections made therein, the Petitioner must establish that all eligibility requirements for the 
immigration benetit have been satisfied from the time of the filing and continuing through 
adjudication. 8 C.F.R. § 103.2(b)(l). In the present matter, the Petitioner had three employees at the 
time of filing; it therefore follows that these three employees, rather than the administrative and sales 
managers that are depicted in the projected organizational chart, would be the Beneficiary's direct 
subordinates at the time of tiling. While the Petitioner provided job descriptions for these positions, 
it did not establish that the sales specialist and the sales engineer positions are supervisory, 
professional, or managerial in nature. See section l 0 l (a)(44)(A)(ii) of the Act. Therefore, the 
Petitioner did not establish that at the time of filing, the Beneficiary would assume a position where 
he would oversee a statT of supervisory, professional, or managerial employees. 
We further note that the Petitioner had no administrative staff at the time of filing. This leads us to 
question who, if not the Beneficiary, would perform its daily administrative tasks. While the 
Beneficiary is not required to allocate 100% of his time to managerial-level tasks, the Petitioner must 
establish that the non-qualifying tasks the Beneficiary would perform would only be incidental to the 
proposed position. 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 capacity. See. 
e.g., sections l0l(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 l&N Dec. 593, 
604 (Comm'r 1988). Given the Petitioner's limited support statT at the time of filing, we find that 
the Petitioner did not adequately establish that it would meet the immediate needs of the 
organization while relieving the Beneficiary from having to allocate his time primarily to performing 
its operational and administrative functions. 
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B. Duties 
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Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary will perform cert~in high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also demonstrate 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. USCJS, 469 F.3d 1313, 
1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
Further, in order to establish eligibility, the Petitioner must provide a job description that clearly 
describes the duties to be performed by the Beneficiary and indicate whether such duties are in a 
managerial capacity. See 8 C.F.R. § 214.2(1)(3)(ii). 
In the initial cover letter, the Petitioner stated that the Beneficiary would direct its business 
development strategies, act as its liaison with the foreign entity, and ensure that the foreign entity's 
policies and decisions are effectively implemented. The Petitioner also provided a job duty 
breakdown indicating that the Beneficiary would allocate 7% of his time to each set of the below 
listed duties for a total of 77% of the Beneficiary's time: 
• Directing operations through the development and implementation of policies, strategies, and 
objectives to meet business expansion and sales revenue goals; 
• Overseeing "general administration," developing "directions and operational procedures," 
advising on solutions for "internal issues," and directing resource allocation and "cooperation 
with the parent company"; 
• Managing corporate governance, determining staffing requirements, establishing "major 
departments," and directing "employment of qualified staff'; 
• Formulating policies to maintain a strong sales and marketing team and reviewing sales and 
marketing "compensation, tools, planning, organization[,] and structure";· 
• Directing and monitoring the performance of department managers; 
• Assessing and controlling risks in business development strategies; 
• Establishing business strategies in accordance with market conditions, government policy, 
and technological developments; 
• Directing resource allocation through budget control and cash flow management; 
• Formulating plans and strategies that promote the company's products and services, 
encourage "customer rapport," and increase market share; 
• Developing sales by directing "business relations" and collaborating with distributors; and 
• Evaluation opportunities to expand into. new markets and offer more products within the 
"California agricultural sector." 
In response to the RFE, the Petitioner resubmitted the original job description, highlighting portions 
that it deemed indicative of the Beneficiary's managerial role in his proposed position. We lind, 
however, that a majority of the job duties listed above are overly broad and could apply to any 
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manager acting in any business or industry. Further, they rely on broad terminology, such as 
"direct," "oversee," "establish," "manage," and "formulate" to describe the Beneficiary's proposed 
employment. These generalities convey no meaningful information about the Beneficiary's actual 
daily tasks and focus primarily on the Beneficiary's discretionary authority, rather than the actual 
tasks he would perform within the scope of the petitioning organization, which, at the time of filing, 
included no administrative staff to carry out basic operational functions and no managers to oversee 
the three-person staff comprising the Petitioner's sales and marketing department. Reciting the 
Beneficiary's vague job responsibilities or broadly-cast business objectives is not sufticicnl. As 
previously noted, the regulations require a detailed description of the Beneficiary's daily job duties. 
See 8 C.F.R. § 214.2(1)(3)(ii). 
We further note that the Beneficiary's management of the business does ri.ot necessarily establish 
eligibility for classification as an intracompany transferee in a managerial capacity within the 
meaning of section IO!(a)(44)(A) of the Act. By statute, eligibility for this classification requires 
that the duties of a position be "primarily" managerial in nature. Sections I 01 (A)(44)(A) of the Act. 
While the Beneficiary may exercise discretion over the Petitioner's day-to-day operations and 
possess the requisite level of authority with respect to discretionary decision-making, these elements 
alone are not sufficient to establish that his actual duties would be primarily managerial in nature. 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co .. Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). As such, a 
detailed job description is critical to a determination of whether the Beneficiary would be employed 
in a managerial capacity. Here, the record lacks a job description that delineates the Beneficiary's 
specific tasks based on the Petitioner's staffing and scope of operations at the time of filing. 
On appeal, the Petitioner claims that upon his arrival to the United States under an approved visa 
petition, the Beneficiary will assume the task of hiring managers to staff the sales and marketing 
department, contending that hiring managerial employees indicates that the Beneficiary's position is 
managerial in nature. We find, however, that the Beneficiary's initial hiring responsibilities upon his 
arrival would be for the purpose of staffing an otherwise understaffed organization, which is not 
currently capable of supporting the Beneficiary in a managerial capacity. Although discretionary 
authority over personnel actions is an element of the definition of managerial capacity, in this 
instance, the Beneficiary would be carrying out this duty within the scope of an entity that currently 
operates at a rudimentary developmental stage. 
Further, while the Petitioner asserts that the Beneficiary will not spend the majority of his time 
performing "day-to-day functions," it has not provided evidence to support this assertion, as it has 
not established that it has the ability to relieve him from having to perform primarily non-managerial 
tasks that are common to a company that has not progressed beyond an initial phase of development. 
As noted earlier, the Petitioner 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. 
§ I 03 .2(b )(I). As. such, we cannot determine the Petitioner's eligibility based on facts and 
circumstances that did not yet exist at the time of filing. Here, we find that a number of the assigned 
duties were projected for a future position that the Beneficiary could not have held when the petition 
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was filed, as the Petitioner had not yet attained the organizational complexity or level of business 
activity that was required for the Beneficiary to be able to engage in duties that are primarily 
· managerial in nature. 
In sum, we find that the Petitioner made unsupported claims about the Beneficiary's proposed job 
duties and provided insufficient evidence to show that it was able to relieve the 13enel1ciary from 
having to allocate her time primarily to non-managerial job duties at the time the petition was tiled. 
Therefore, we cannot conclude that the Benellciary would be employed in a managerial capacity 
under an approved petition. 
III. CONCLUSION 
For the reasons discussed above, we tind that the Petitioner has not established that the Beneficiary 
will be employed in the United States in a managerial capacity. The appeal will be dismissed for 
this reason. 
ORDER: The appeal is dismissed. 
Cite as Maller of A-. Inc., ID# 1229148 (AAO May 31, 20 18) 
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