dismissed L-1A Case: Sporting Goods

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-S-USA, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 18,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a manufacturer and wholesaler of sporting goods, seeks to continue the Beneficiary's 
temporary employment as its "Executive Director" under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 101(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 of the California Service Center denied the petition concluding that the Petitioner did 
not establish, as required, that the Beneficiary would be employed in a managerial capacity. 1 
On appeal, the Petitioner submits a brief disputing the denial, claiming that the Beneficiary will 
primarily perform managerial job duties despite the size of its organization. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in a position involving 
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. !d. 
A petitioner seeking to extend an L-1 A petition that involved a new office must submit a statement 
of the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
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The instant petition seeks to continue employment of a beneficiary who came to the United States to open a new office. 
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(1)(1 )(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. 
Matter of S-S-USA, Inc. 
evidence of its financial status, evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign 
employer. 8 C.F.R. § 214.2(1)(14)(ii). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary would be employed in 
the United States in a managerial or executive capacity. 
The term "managerial capacity" is defined 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. 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." !d. 
Section 101(a)(44)(A) ofthe Act. 
The term "executive capacity" is defined 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; 
(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 ofS-S-USA, Inc. 
(iv) receives only general supervision or direction from higher-level executives, 
the board of directors, or stockholders of the organization. 
Section 101(a)(44)(B) of the Act. If staffing levels are used as a factor in determining whether an 
individual is acting in a managerial or executive capacity, U.S. Citizenship and Immigration 
Services (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 1 01 (a)( 44 )(C) of the Act. 
A. Duties 
When examining the managerial 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). 
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. 
The Petitioner filed the Form 1-129 claiming four employees and a gross income of $500,000. In a 
supporting document, the Petitioner stated that the Beneficiary's key responsibilities would include 
managing a "senior executive team" and hiring "senior-level management," delegating tasks to 
subordinate managers, leading strategy development and implementation of long- and short-term goals, 
assessing and managing risks, establishing and managing "information systems," communicating with 
the foreign parent entity, ensuring "integrity of all public disclosure," holding "special meetings" about 
"company status," and ensuring stability in the company's operations. The Petitioner did not specifY 
which employees would comprise the "senior executive team" that the Beneficiary is said to manage or 
which positions would constitute the "senior-level management" that the Beneficiary seeks to hire. The 
Petitioner also did not elaborate on the specific tasks and actions that are involved in leading strategy 
development or identify specific risks that the Beneficiary would assess and manage within the scope of 
its manufacturing and wholesale business. Likewise, the Petitioner did not specify which "information 
systems" the Beneficiary would put in place or identify the type of information that would be subject to 
"public disclosures" and state how the Beneficiary would ensure its integrity. 
The Director issued a notice of intent to deny (NOID) advising the Petitioner that its description of 
the Beneficiary's proposed position was not sufficient to determine what the Beneficiary would be 
doing on a daily basis. The Director also deemed the evidence insufficient to establish that the 
Beneficiary either manages supervisory or professional employees or that he manages an essential 
function. 
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Matter of S-S- USA, Inc. 
In response, the Petitioner provided a somewhat confusing statement where it seemingly 
acknowledged that the Beneficiary's two subordinates are not professional, supervisory, or 
managerial employees. The Petitioner also stated that it was "obvious" that the Beneficiary was 
managing the company over the course of the past year because there were no professional, 
supervisory, or managerial employees, other than the Beneficiary, to manage it. The Petitioner 
stated that it was submitting a revised job description to demonstrate that the Beneficiary's proposed 
position is managerial. 
We note that the Petitioner's supplemental statement did not expand on the Beneficiary's original list 
of job duties and instead included a vague job description that did not demonstrate the managerial 
nature of the proposed employment. Namely, the Petitioner stated that over the next two to three 
years, the Beneficiary would devote 75% of his time to overseeing the company's daily operations, 
managing and performing its "essential functions," supervising its staff and evaluating their 
performance, "manag[ing] each department," expanding the company to include an administration 
department, and hiring more employees. The Petitioner also stated that the remaining 25% of the 
Beneficiary's time would be spent performing and managing "functional duties," making decisions 
to set the company's marketing, sales, and financial plans, studying market conditions and updating 
business strategies accordingly, controlling the company's budget, and setting sales goals for the 
sales and marketing staff. The Petitioner did not allocate time constraints to the individual 
components of the job description or list specific tasks that establish the specific actions the 
Beneficiary would perform on a day-to-day basis in meeting his responsibility to oversee the 
company's daily operations. The Petitioner also did not identify which "essential functions" and 
"functional duties" the Beneficiary would manage and which he would perform, nor did it specify 
how much time the Beneficiary would allocate to performing versus managing the unidentified 
functions and duties. Reciting the Beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the actual duties themselves 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). 
In addition, the new job description was inconsistent with the original list of duties. The former job 
description included vague references to the Beneficiary's role in managing a "senior executive 
team," hiring "senior-level management," and delegating tasks to subordinate managers; however, 
the more recent job description contradicted those references by indicating that the Beneficiary's two 
subordinates are not professional, supervisory, or managerial employees. In any event, the Petitioner 
neglected to elaborate as to the positions that comprise the "senior execu~ive team" and "senior-level 
management" and the evidence of record does not establish the existence of a "senior executive 
team" or a tier of "senior-level management." The Petitioner must resolve these incongruities 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). 
In denying the petition, the Director determined that the evidence does not establish that the 
Beneficiary would primarily perform managerial duties that involve overseeing professional, 
managerial, or supervisory employees or managing an essential function. 
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Matter of S-S- USA, Inc. 
On appeal, the Petitioner argues that the Director's decision is erroneous and contends that the 
Beneficiary can meet the statutory criteria of managerial capacity by showing that he functions at a 
senior level within the organization or with respect to a function that he manages. We note, 
however, that the Beneficiary's placement within the Petitioner's organizational hierarchy is only 
one of several factors we evaluate in determining whether the Beneficiary would be employed in a 
managerial capacity. As noted above, the Beneficiary's actual job duties are also critical in making 
this determination. On appeal, the Petitioner claims that the Beneficiary "devotes a majority of his 
time ... toward managerial functions." However, the Petitioner must support its assertions with 
relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 369, 3 76 (AAO 
201 0). In light of the ambiguities and inconsistencies we cited above, we cannot discern the specific 
tasks the Beneficiary would perform on a daily basis and the amount of time the Beneficiary would 
devote to managerial versus operational or administrative tasks that are required to ensure the 
Petitioner's proper daily function. 
While no beneficiary is required to allocate 100% of his or her time to managerial-level tasks, the 
petitioner must establish that the non-qualifying tasks the beneficiary would perform are only 
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 or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 1988). Due to the lack of sufficient consistent 
evidence establishing the actual tasks the Beneficiary would perform we cannot conclude that his 
duties would be primarily of a managerial nature. 
Despite the Petitioner's recent shift in focusing on the Beneficiary's proposed employment in a 
managerial capacity, we acknowledge the Petitioner's original supporting statement where it claimed 
that the Beneficiary would be employed in an executive capacity. However, based on the above 
analysis of the job descriptions provided originally in support of the petition and subsequently in 
response to the NOID we similarly cannot conclude that the Beneficiary would be employed in an 
executive capacity. 
B. Staffing 
Beyond the required description of the job duties, USC IS reviews the totality of the evidence when 
examining a beneficiary's claimed managerial capacity, 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. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 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. Contrary to the common understanding of the word "manager," the statute 
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Matter ofS-S-USA, Inc. 
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." Section 101(a)(44)(A)(iv) of the Act. 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(l)(l)(ii)(B)(3). 
In the present matter, the Petitioner's initial supporting evidence included an organizational chart, 
which depicted the Beneficiary as overseeing a sales manager and a network and electronic 
commerce manager with only the sales manager depicted as a managerial or supervisory employee. 
We note that the organizational chart does not depict the network and electronic commerce manager 
supervising or managing any subordinate employees and the job description likewise does not 
substantiate this employee's managerial position title. That said, while the chart shows a 
telemarketing agent in a position that is directly subordinate to the sales manager, neither of the sales 
manager's two job descriptions list any managerial or supervisory tasks with respect to the 
telemarketing agent. Rather, one of the sales manager's job descriptions indicates that he/she would 
oversee the work of sales representatives. However, the organizational chart does not indicate that 
the Petitioner employed any sales representatives at the time of filing. Therefore, the record does not 
adequately and consistently s~pport the claim that the sales manager is currently a managerial or 
supervisory employee. As noted above, the Petitioner must support its assertions with relevant, 
probative, and credible evidence. See Chawathe, 25 I&N Dec. at 376. 
The Petitioner properly points out on appeal that the Beneficiary can satisfy the personnel manager 
requirements if it is established that the Beneficiary oversees the work of professional employees, 
even if such subordinates are not managers or supervisors. See section 10l(a)(44)(A)(ii) of the Act. 
However, we do not find that the Beneficiary's subordinates can be deemed professional employees 
based on the submitted evidence. 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 U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation"). Section 10l(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." 
Here, the employee job descriptions state that an associate's degree is the minimum educational 
requirement for the sales manager and its network and electronic commerce manager, thereby 
indicating that neither position requires educational credentials that rise to the level of a professional. 
.While new information was provided in the NOID response, which indicates that the position of 
network and electronic commerce manager requires a bachelor's degree, the Petitioner has not 
provided independent, objective evidence to resolve the inconsistency between this information and 
the information contained in the original employee job description, where the Petitioner indicated 
that an associate's degree was the highest degree needed for the position. See Ho, 19 I&N Dec. at 
591-92. 
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/ 
Matter of S-S-USA, Inc. 
Furthermore, the Beneficiary's job description contained in the NOID response expressly states that 
he has "absolute power" to hire, fire, and promote all staff as well as "evaluate their performance 
regularly and set up goals for each staff [sic] to achieve." In the same job description, the Petitioner 
stated that "[a]ll staff under the departments are under [the Beneficiary]'s supervision and directions 
[sic]." These statements contradict the organizational chart in that they indicate that the Beneficiary, 
rather than the sales manager, has direct supervisory control over the Petitioner's telemarketing 
agent, and that the Beneficiary's supervisory duties would extend to all staff, rather than being 
primarily limited to the Petitioner's supervisory, professional, or managerial employees. We note 
that artificial tiers of subordinate employees and inflated job titles are not probative and will not 
establish that an organization is sufficiently complex to support a managerial position. As stated in 
the Director's decision, an individual whose primary duties are those of a first-line supervisor will 
not be considered to be acting in a managerial capacity merely by virtue of his or her supervisory 
duties unless the employees supervised are professional. Section101(a)(44)(A)(iv) of the Act. 
In sum, while the Beneficiary may have the authority to hire and fire employees and take other 
personnel actions as a result of his top-most placement within the Petitioner's organizational 
hierarchy, the record does not establish that the Petitioner had the management structure in place at 
the time of filing to support the Beneficiary as a personnel manager who would primarily oversee the 
work of supervisory, professional, or managerial employees. 
Further, the Petitioner's statements on appeal urging us to focus on its reasonable needs rather than 
the size of its support staff are not persuasive, as the Petitioner did not establish that it had sufficient 
support personnel at the time of filing to relieve the Beneficiary from allocating his time primarily to 
performing the organization's non-managerial functions. We note that overseeing a staff that is 
comprised of non-supervisory, non-professional, and non-managerial employees does not satisfy the 
statutory requirements of managerial capacity. See section 101(a)(44)(A)(ii) of the Act. Moreover, 
the Petitioner has not provided information to account for a number of operational and 
administrative duties, such as answering phones, issuing invoices, handling accounts payable and 
receivable, communicating with vendors, and shipping and receiving of merchandise, which are 
undoubtedly required within the Petitioner's manufacturing and wholesale operation. Without 
information as to who performs these operational tasks, we cannot exclude the possibility that the 
Beneficiary himself is directly involved in such tasks in addition to overseeing the Petitioner's non­
supervisory, non-professional, and non-managerial employees. 
In denying the petition, the Director determined that neither the Petitioner's organizational hierarchy 
nor the job duties of the Beneficiary's subordinates support the claim that the Beneficiary would 
primarily manage a staff of professional, managerial, or supervisory personnel. In light of the 
analysis provided above, we agree with the Director's conclusion. 
Alternatively, 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 101(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 
Matter of S-S-USA, Inc. 
will manage an essential function, a petitioner must clearly describe the duties to be performed in 
managing the essential function, or more specifically, identify the function with specificity, 
articulate the essential nature of the function, and establish the proportion of a beneficiary's daily 
duties attributed 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 duties related to the function. See Matter of Z-A -, Inc., 
Adopted Decision 2016-02 (AAO Apr. 14, 2016). 
In this matter, despite making claims on appeal, the Petitioner has not provided sufficient evidence to 
demonstrate that the Beneficiary manages an essential function. The Petitioner has neither identified an 
essential function with specificity nor provided sufficient evidence to demonstrate who within its 
organization would perform the underlying non-managerial duties associated with an essential function. 
Again, the Petitioner must support its assertions with relevant, probative, and credible evidence. See 
Chawathe, 25 I&N Dec. at 376. 
In light of the various deficiencies catalogued above, we find that the Petitioner has not established that 
_it would employ the Beneficiary in a managerial capacity. Likewise, the same deficiencies and lack of 
consistent supporting evidence also precludes a determination that the Beneficiary would be employed 
in a position where his primary focus would be directing the management of the organization through a 
managerial staff. For the reasons discussed above, the evidence submitted also does not establish that 
the Beneficiary would be employed in an executive capacity under the extended petition. Therefore, 
this appeal will be dismissed. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-S-USA, Inc., ID# 492499 (AAO July 18, 2017) 
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