dismissed L-1A Case: Stationery Design

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 22, 2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a manufacturer of boutique wedding stationery and related products, seeks to 
temporarily employ the Beneficiary as the founder and creative director of its new office under the 
L-1 A nonimmigrant classification for intracompany transferees. See Immigration and Nationality 
Act (the Act) section 101(a)(l5)(L), 8 U.S.C. § 1101(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, Vermont Service Center, denied the petition. The Director concluded that the 
evidence of record did not establish that: (1) the Beneficiary has been employed abroad in a 
managerial capacity; and (2) the Petitioner's new oft1ce would support a managerial position within 1 
year of the approval of the petition. 1 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred by misinterpreting or disregarding prior evidence. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for 1 continuous year within 3 years preceding the Beneficiary's application for admission 
into the United States. 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, executive, or specialized knowledge capacity. Section 101(a)(15)(L) ofthe Act. 
The regulation at 8 C.F.R. § 214.2(1)(3)(v) states that ifthe Form I-129, Petition for a Nonimmigrant 
Worker, indicates that the' beneficiary is coming to the United States as a manager or executive to 
1 
The Petitioner does not claim that the Beneficiary has been or will be employed in an executive capacity. Therefore, 
we restrict our analysis to whether the Beneficiary foreign and proposed U.S. employment are in a managerial capacity. 
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Matter ofC-, Inc. 
open or to be employed in a new o±Iice in the United States, the petitioner shall submit evidence 
that: 
(A) Su±Iicient physical premises to house the new of1ice have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial capacity 
and that the proposed employment involved executive or managerial authority 
over the new operation; and 
(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
(3) The organizational structure of the foreign entity. 
II. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The Director found that the· Petitioner did not establish that the Beneficiary has been employed 
abroad in a managerial capacity. Specifically, the Director determined that the Petitioner did not 
submit a sufficiently detailed description of the Beneficiary's job duties, provide sufficient evidence 
to establish that ·the Beneficiary supervises a subordinate stafT of managerial, professional or 
supervisory employee, or establish that the Beneficiary is relieved from significant involvement in 
the operational duties of the foreign entity's business. 
On appeal, the Petitioner asserts that the record demonstrates that the Beneficiary primarily spends 
her time managing the foreign entity's design department and overseeing its supervisory and 
professional employees. 
Upon review of the petition and evidence, including the Petitioner's appeal, we agree with the 
Director's decision. 
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(b)(6)
Matter of C-, Inc. 
A. Law 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
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 weli 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. 
Further, "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. " 1d. 
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. 
B. Duties 
When examining the managerial capacity of the Beneficiary , we look first to the Petitioner's 
description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). First, the Petitioner must show that the 
Beneficiary performed certain high-level responsibilities described in the statutory definition. 
Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, 
the Petitioner must prove that the Beneficiary has been 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. 
bn the Form I -129, the Petitioner identified the Beneficiary's foreign employer as 
which sells bridal products such as wedding dresses, jewelry, and stationery. In a supporting 
let.ter the Petitioner stated that the Beneficiary "has been responsible for overseeing the 
conceptualizing and development of new designs for the company's collection" and for "overseeing 
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Matter of C-, Inc. 
the arrangement and maintenance of the company's marketing strategies." It further described her 
duties as "Creative and Marketing Director" as: 
• Accomplish work requirements by orienting, training, assigning, scheduling, and 
coaching design team. 
• Meet work standards by following production, productivity, quality, and 
customer-service standards; resolving operational problems; and identifying work 
process improvements. 
• Meets cost standards by monitoring expenses and implementing cost-saving 
actions. 
• Develop basic presentation approaches by reviewing materials and information 
presented by client. 
• Determine production requirements by reviewing client requirements; considering 
scheduling factors. 
• Determine production schedule by conferring with heads of art, design, and 
production departments; outlining basic presentation concepts; and coordinating 
creative activities. 
• Determine project content by reviewing and approving art and design materials 
developed by designers. 
• Obtain client approval by presenting final layouts to client. 
• Improve quality results by studying, evaluating, and re-designing processes; 
recommending changes to art and production departments. 
• Develop marketing strategies by examining client objectives; planning, 
scheduling, and completing design and production requirements for direct 
marketing and advertising. 
• Keep clients informed by compiling, analyzing, and reporting marketing results; 
as well as forwarding plan projections and updates. 
• Revise marketing plans by analyzing campaign results and identifying expansion 
opportunities. 
• Monitor marketing mix and results by coordinating tracking actions with sales 
and marketing representatives. 
• Improve marketing quality results by studying, evaluating, and re-designing 
creative processes; and implementing changes. 
• Accomplish marketing and company's mission by completing related results as 
needed. 
The above job description refers to "sales and marketing representatives," but the record does not 
show that the foreign company employs any sales or marketing representatives. 
An annotation on the foreign company's organizational chart (discussed in more detail further 
below) states that the Beneficiary, "being one of the Senior Designers conceptualizes new designs 
for the Companies [sic] collection or consulting with clients for custom designs. [The Beneficiary] 
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Matter ofC-, Inc. 
is also responsible for arranging and maintaining the company's marketing strategies to uphold the 
company's brand." 
The Beneficiary's resume contains a different job description, which, like the organizational chart, 
indicates that the Beneficiary personally designed products rather than simply overseeing their 
production by subordinates: 
• Create designs, concepts, and sample layouts based on knowledge of layout 
principles and esthetic design concepts to suit the brands and/or clients' needs 
• Formulate, direct and coordinate marketing activities and policies to promote 
products and services, working together with specialized companies to further the 
brands outreach and brand name. 
• Recruiting, training and scheduling of the design team to meet work requirements. 
• Determine production schedules by consulting with design and production 
departments to ensure quality work is produced within the clients and/or brands 
time line. 
• Meet wor[k] standards by following production, productiv:ity, quality, and 
customer service standards. 
• Consult with the production department to resolve productivity issues and identify 
work process improvements. 
• Liaise \Vith clients on project requirements, deadlines and timelines. Continued 
communication is required throughout the process to keep the client updated and 
involved. 
The Director issued a request for evidence (RFE), asking for more details about the Beneficiary's 
employment overseas, including the amount of time she spent on various tasks. In response, the 
Petitioner acknowledged that the Beneficiary performed "some operational or administrative tasks 
from time to time" owing to the company's small size, but the Petitioner maintained that the 
Beneficiary "primarily manages the design team and department." 
The Petitioner submitted a new job description that tilled most of a page, and a condensed version 
with a breakdown ofthe time spent on each category of tasks: 
• Interviewing, hiring, firing, training, promoting, scheduling, coaching, evaluating, 
coordinating, reviewing, and supervising designers and their work and 
determining all design activities for the design team: 60% 
• Formulating, directing, evaluating, coordinating marketing activities/strategies 
and promoting products or services: 5% 
• Working with clients to develop designs, receive client approvals, informing them 
of the project progress, forwarding project plans, etc.: 10% 
• Meeting with the CEO [chief executive officer], reviewing company policies and 
objectives, and collaborating with the head of the production department to ensure 
overall company progress: 5% 
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Matter qf C-, Inc. 
• Creating/collaborating with designers for products, determining product 
specifications for color/design/packaging, giving final approval for all design 
work, consulting with production team about production schedules and 
requirements: 10% 
• Evaluating department to determine cost effectiveness and the adherence to 
standard operating procedures: 10% 
In denying the petition, the Director stated that the job descriptions lack necessary details about the 
Beneficiary's former duties overseas. On appeal, the Petitioner states that "the Beneficiary must 
determine what designs, materials, methods, techniques, etc., should be created or used for each 
product," and that "an innumerable number of hours are spent on the design process." 
The record, however, strongly suggests that the Beneficiary herself performs much of that design 
process, rather than simply reviewing designs prepared by subordinates. It also appears likely that 
the Beneficiary directly deals with customers, because the Petitioner has not identified any other 
staff at the foreign company who were responsible for that non-qualifying function. As we will 
discuss below, the Beneficiary has only two year-round subordinates at the foreign company, and 
therefore the assertion that she spends 60% of her time on personnel issues does not appear to be 
consistent with the available facts. 
As shown above, the Beneficiary's foreign job description contains inconsistencies and 
discrepancies, such as references to an apparently nonexistent sales and marketing staff, and 
disagreement as to whether the Beneficiary herself plays a creative role in the design process. The 
original version of the job description did not indicate that the Beneficiary had significant personnel 
responsibilities, but a later revision indicated that these duties occupied most of her time. The 
reverse is true of the Beneficiary's design responsibilities, which were downgraded from being a 
central element of her duties to an ancillary responsibility taking up only a tenth of her time. 
Therefore, we cannot determine the ratio of qualifying to non-qualifying duties that the Beneficiary 
performed abroad. The Petitioner bears the burden of documenting what portion of the 
Beneficiary's duties will be managerial and what proportion will be non-managerial. See Republic 
ofTranskei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991). Absent a clear and credible breakdown of 
the time spent by the Beneficiary performing her various duties, we cannot determine what 
proportion of the duties is managerial, nor can we deduce whether the Beneficiary primarily 
performs managerial duties. IKEA US, Inc: v. US. Dept. o.fJustice, 48 F. Supp. 2d 22, 24, (D.D.C. 
1999). 
C. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, 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, 
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Matter of C-, Inc. 
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 sections 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. 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." 2 Section 101(a)(44)(A) of the Act. If a petitioner claims 
that a beneficiary directly supervises other employees, those subordinate employees must be 
supervisory, professional, or managerial, and the beneficiary must have the authority to hire and fire 
those employees, or recommend those actions, and take other personnel actions. Sections 
101(a)(44)(A)(ii)-(iii) of the Act. 
The Petitioner's initial statement suggested that the Beneficiary was both a personnel manager and a 
func,tion manager overseas: 
[The Beneficiary] supervises and controls the work of professional designers and 
manages the Creative Department within the company. She manages an essential 
function of the company at a high level, and without immediate or direct supervision 
of others. [The Beneficiary's] position is a senior level position and she performs an 
essential function at the foreign company. 
An organizational chart for the foreign company shows the following structure: 
Chief Executive Officer 
Creative & Marketing Director Production Director 
I I 
2 Design Assistants 2 Production Assistants 
I I 
2 Freelance Designers 2 Freelance Production Assistants 
Annotations on the chart indicated that the freelance designers and production assistants are seasonal 
hires rather than year-round employees, and that the design assistants assist the Beneficiary "with 
2 To detennine whether the 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 United States baccalaureate degree or its foreign equivalent 
is the minimum requirement for entry into the occupation"). Section IOI(a)(32) of the Act, 8 U.S.C. § JIOI(a)(32), 
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." 
Matter of C-, Inc. 
conceptualizing new designs and current design projects. . . . They may from time to time be 
involved with assembly aspects of items." The in-house design assistants would also train and 
oversee the seasonal freelancers. 
I 
The Petitioner submitted payroll information for the foreign company's year-round employees, but 
no documentation to show that it had employed freelance designers, or for how long. 
The Director, in the RFE, requested additional information about the Beneficiary's subordinates. In 
response, the Petitioner submitted a job description for the foreign entity's "primary designers." The 
description indicated that the designers are responsible for, among other things, "[ c ]reating new 
designs for the company collection," "[ c ]reating, arranging, and maintaining the company's 
marketing strategies," and "[c]ommunicating with clients." These tasks overlap with duties that the 
Beneficiary claimed for herself on her own resume. 
In the denial notice, the Director found that the Petitioner had not established that the design 
assistants are professionals, managers, or supervisors. Therefore, the Director determined the 
Beneficiary's position abroad is essentially that of a first-line supervisor. 
On appeal, the Petitioner states that the Director "acknowledged that the Beneficiary is engaged in a 
supervisory position," but supervisory duties are not managerial unless the employees supervised are 
professionals, supervisors, or managers. The Petitioner has not established that any of these terms 
apply to the Beneficiary's subordinates. 
The Petitioner's response to the RFE makes it clear that the Beneficiary's subordinates were not 
"professionals" in the relevant sense of that term. The Petitioner stated that the foreign entity does 
"not require [its] designers to have bachelor's degrees." The statutory definition of "profession" 
does not include art designers or closely related occupations. 
The Petitioner protests that the Director "determined that our designers are non-professionals simply 
because they do not have design degrees," when the company "cannot place weight on academic 
degrees over artistic talent." The Petitioner has not shown that the designers' positions meet the 
statutory definition of a "profession." Even if the Petitioner had offered an alternative definition of 
"professional," which it has not done, the Petitioner cannot substitute its own definition of relevant 
terminology when the controlling definition does not establish eligibility. 
The Petitioner contends, on appeal, that "the designers immediately under [the Beneficiary] also 
perform in managerial/supervisory capacities, as they train, supervise[,] oversee, and control the 
work of the freelance designers." But the Petitioner has also stated that the foreign company only 
employed freelance designers during the "peak season." The record demonstrates that the primary 
designers are designers first and foremost, and any supervisory responsibilities are intermittent and 
ancillary to their principal function as artistic designers. For most of the year, the foreign company 
employs no freelance designers, and the Beneficiary is the first-line supervisor of the primary 
designers (or design assistants). Because the Petitioner has not shown that these employees are 
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Matter of C-, Inc. 
professionals, the Petitioner has not demonstrated that the Beneficiary's first-line supervision of 
those designers is a managerial function. 
The Petitioner has not established, in the alternative, that the Beneficiary was employed primarily as 
a "function manager." 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) ofthe Act. The term 
"essential function" is not defined by statute or regulation. If a petitioner claims that a beneficiary 
managed an essential function, a petitioner must clearly describe the duties performed in managing 
the essential function, i.e., identify the function with specificity, articulate the essential nature of the 
function, and establish the prqportion of a beneficiary's daily duties dedicated 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 managed the function rather than 
performed the duties related to the function. 
The Beneficiary's discretionary authority over the design department is not enough to show that she 
has served as a function manager. Here, the Petitioner has claimed that the Beneficiary spent most 
of her time supervising subordinate workers who are neither professional, nor supervisory, nor 
managerial. By statute, such supervisory work is non-qualifying, and the Petitioner cannot 
circumvent the plain language of the statute by calling the oversight of designers an "essential 
function." 
The Petitioner has also provided inconsistent information as to the principal source of the designs. 
Before the Petitioner called the Beneficiary's subordinates "primary designers," it called them 
"design assistants," and the job description in the Beneficiary's own resume began with the phrase 
"create designs." The resume also referred to "[ r ]ecruiting, training, and scheduling of the design 
team," but did not indicate that personnel duties occupied more than half of the Beneficiary's time, 
nor is it evident that they could take that much time given the small subordinate staff. 
Whether the Beneficiary was principally a designer herself, as her resume implies, or whether she 
spent most of her time supervising non-professional, non-supervisory subordinates, as the Petitioner 
claimed later, the record indicates that the Beneficiary spent most of her time performing tasks that 
were either operational, administrative, or the duties of a first-line supervisor of non-professional 
employees. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary was employed in a managerial capacity abroad. 
III. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director further found that the Petitioner had not established that the new office would be able 
to support a managerial position within 1 year. The Director determined that the Petitioner did not 
submit sufficient evidence to demonstrate that the new office is prepared to commence doing 
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Matter of C-, Inc. 
business upon the approval ofthe petition, and focused mainly on the size of the U.S. investment and 
the Petitioner's proposed hiring plan. 
On appeal, the Petitioner submits additional infonnation regarding the size of the investment and the 
source of the funds, and asserts that the ,new office's small projected size should not prohibit a 
finding that the company will support a managerial position within 1 year. 
When a new business is first established and commences operations, the regulations recognize that a 
designated manager responsible for setting up operations will be engaged in a variety of low-level 
activities not normally performed by employees at the managerial level and that often the full range 
of-managerial responsibility cannot be performed in that first year. The "new office" regulations 
allow a newly established petitioner 1 year to develop to a point that it can support the employment 
of a beneficiary in a primarily managerial position. 
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new 
office," it must show that it is prepared to commence doing business immediately upon approval so 
that it will support a manager within the 1-year timeframe. This evidence should demonstrate a 
realistic expectation that the enterprise will succeed and rapidly expand as it moves away from the 
developmental stage to full operations, where there would be an actual need for a manager or 
executive who will primarily perform qualifying duties. See generally 8 C.F.R. § 214.2(1)(3)(v). 
The petitioner must describe the nature of its business, its proposed organizational structure and 
financial goals, and submit evidence to show that it has the financial ability to remunerate the 
beneficiary and commence doing business in the United States. Id.. 
A. Equipment and Funding 
The regulation at 8 C.F.R. § 214.2(1)(5)(C)(2) requires the Petitioner to show the size of the United 
States investment and the financial ability of the foreign entity to remunerate the beneficiary and to 
commence doing business in the United States. 
The Director found that the Petitioner had not established that it has sufficient funds and equipment to 
meet its start-up costs and begin operations upon approval of the petition. The Director based this 
conclusion, in part, on a finding that the Petitioner's start-up costs exceed $100,000, while the only pre-_ 
filing infusion of capital was a $60,000 wire transfer. The Director did not cite a source for the 
$100,000 figure. The Petitioner's business plan cited start-up costs of $20,000. It appears that the 
Director may have included the Petitioner's projected salary expenses in her calculation of start-up 
costs. However, first-year salaries are ongoing expenses offset by revenue, rather than funds that are 
due up front, no later than when the company begins operations. 
With respect to equipment, the Director noted that photographs of the Petitioner's leased business space 
do not show any equipment needed to carry out the intended stationery design and printing business. 
The Petitioner, however, indicated that the foreign company would ship a substantial amount of 
equipment to the Petitioner upon approval of the petition. A price list from a U.S. vendor listed 
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Matter of C-, Inc. 
additional items. The listed prices exceed the stated start-up cost of$20,000, but remain well within the 
margin afforded by the documented wire transfer. 
The Director's conclusions about the new office's readiness to begin doing business did not take key 
evidence and information into account, and therefore we withdraw that conclusion. This does not 
change the outcome of the decision, because other grounds for denial remain. 
B. Duties and Staffing 
The Petitioner's introductory letter includes a job description for the Beneficiary's intended position 
in the United States. This job description is a shortened, but nearly identical version of the initial 
description for the foreign position. Because we have already discussed what is essentially the same 
job description, we need not repeat that discussion here. 
The Petitioner's business plan contains an organizational chart showing that the Beneficiary would 
report to a director general, and would supervise an assistant designer. The organizational chart 
showed both of those positions as vacant, and the business plan forecast the employment of one 
"Designer Assistant" in the second year, growing to two in the third year and three in the fifth year. 
We need not discuss the specifics of the Petitioner's separate production department, because it 
would be outside the Beneficiary's authority. 
The Petitioner's business plan emphasized web-based commerce, but made no allowance for any in­
house staff to take orders, process payments, store inventory, or ship products to purchasers. The 
plan's projected profit and loss statement showed anticipated expenses for shipping and marketing, 
but did not indicate who would perform those functions in place of employees. The business plan 
foresaw three employees during the first year: the director of design (the Beneficiary), the director 
of production, and one production assistant. Because production and design are separate 
departments, the Beneficiary would have no subordinates during the tirst year. 
In the RFE, the Director stated that the Petitioner had not shown that the new office would require or 
support a manager or executive within a year. The Director also noted that the Petitioner did not 
identify any positions "responsible for the day-to-day duties related to common clerical duties in an 
office, human resources management, payroll and financial management, et cetera." 
In response, the Petitioner did not directly address the above concerns. The Petitioner submitted a 
new job description indicating that the Beneficiary would be responsible for overseeing all aspects of 
the company's design department, but the Petitioner did not demonstrate that anyone other than the 
Beneficiary would perform the design functions within 1 year ofthe petition's approval. 
On appeal, the Petitioner maintains that it has shown that "more than 51% of the Beneficiary's duties 
will be managerial in nature," and that the company's small projected size is not sufficient grounds 
to deny the petition. The Beneficiary's described duties, however, presume the employment of 
S\lbordinate staff to perform the functions that the Beneficiary would oversee. The Petitioner states 
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Matter of C-, Inc. 
that it intends to hire two employees during the first year, but they would both be in the production 
department, which the Beneficiary does not oversee. 
According to the Petitioner's business plan, the Beneficiary would not have any subordinates until 
the second year, and therefore the Beneficiary would have no duties related to hiring or training staff 
during the first year. The presence of a production staff would allow the Petitioner to make its 
products, but only if the Beneficiary herself designed them, which would not be a managerial or 
executive function, nor would it be a duty related to setting up the new office. 
The Beneficiary's U.S. job description is identical to her foreign job description, except for the 
removal of references to marketing duties, but the record does not show who would assume those 
duties. The Petitioner has not explained who would handle administrative, clerical, and sales tasks 
.·such as purchasing supplies, taking orders, and shipping completed orders. These are core functions 
without which the Petitioner cannot do business. The Petitioner's 5-year business plan identifies no 
dedicated workers for these functions, and therefore the Petitioner has not shown that other staff 
would relieve the Beneficiary from performing those functions within a year of approval. 
For the reasons discussed above, the Petitioner has not established that, within a year of the approval 
of the petition, the Beneficiary would be working primarily in a managerial capacity. 
IV. DOING BUSINESS ABROAD 
Review of the record reveals a related issue beyond the Director's decision. The regulation at 
8 C.F.R. § 214.2(1)(2)(G)(ii) requires that the business organization that seeks to employ the 
Beneficiary is or will be doing business as an employer in the United States and in at least one other 
country for the duration of the beneficiary's stay in the United States as an intracompany transferee. 
The Petitioner has stated its intention to transfer both of the foreign company's key operational 
officers (who are also its owners) to the United States and has not stated who would operate the 
company in their absence. The Petitioner has also submitted a packing list and tax invoice indicating 
that the foreign company intends to ship R431 ,920.25 worth of design and printing equipment and 
supplies to the Petitioner upon approval of the petition. Although the Petitioner provided several 
months of recent bank statements for the foreign entity, the record does not contain evidence that the 
foreign entity purchased the listed items in the months preceding the date on the packing notice. 
Rather, it appears the foreign entity may in fact be shipping its own equipment and supplies to the 
U.S. company, as the two companies make, or intend to make, the same type of merchandise. 
In the face of this information, it is not evident that the foreign company would have the ability or 
the intention to remain in business after the two owners and the equipment arrive in the United 
States. Cessation of the foreign company's business would be a disqualifying event, because the 
Petitioner would no longer be part of a qualifying international organization. While we are not 
making an adverse determination based on this information, if the Petitioner pursues this matter 
further, it would need to provide evidence to show that the foreign company will be able to continue 
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Matter of C-, Inc. 
its operations after transferring some of its staff (including both owners) and equipment to the 
United States. 
V. CONCLUSION 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains with the 
petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-. Inc., ID# 205808 (AAO Feb. 22, 2017) 
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