dismissed L-1A Case: Technology Consulting

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-T-INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 5, 2018 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, 1 a technology consulting company, seeks to temporarily employ the Beneficiary as its 
vice president under the L-1 A nonimmigrant classification for intracompany transferees. S'ee 
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 of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish. as required, that the Beneficiary would be employed in the United States in a managerial 
or executive capacity. 
On appeal, the Petitioner asserts that it submitted sufficient evidence to establish that the Beneficiary 
would be employed in a managerial or executive capacity with support from employees of its foreign 
parent company, along with one to two employees to be hired during the company's ''1st year of full 
time operations'' 2 in the United States. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility tor 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 
1 
The Petitioner stated its name as· on the Form 1-129, Petition for a Nonimmigrant Worker. 
The Petitioner's name appears as· ·on its certificate of incorporation. 
2 
The Petitioner, which was incorporated in 2008 and reported gross receipts of $203,454 on its 2015 tax return, 
requested a three-year validity period for this petition and marked "'No" on the Form 1-129 where asked if the 
Beneficiary is coming to the United States to open or be employed in 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)( I )(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. Despite the Petitioner's reference to its "tirst 
year" of operations, it did not request treatment as a new office or indicate that it was fi I ing a "new office ·· petition. 
Matter of V- T- Inc 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section IOI(a)(l5)(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. Section 
I 0 I (a)(15 )(L) of the Act. 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). 
"Managerial capacity" means as 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. 
The term "executive capacity" is defined as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function of 
the organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors. or stockholders of the organization. 
Section 10l(a)(44)(B) of the Act. 
If statling 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) takes into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. See section !Ol(a)(44)(C) ofthe Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director determined that the Petitioner did not establish that it would employ the Beneficiary in 
a managerial or executive capacity. The Director emphasized that the Beneficiary, who would be 
the Petitioner's only employee, at least initially, would not be relieved from performing non­
qualifying duties associated with the company's day-to-day operations. and explained that future 
hiring plans have no bearing on eligibility at the time of tiling. The Director acknowledged the 
Petitioner's claim, made in response to a request for evidence (RFE), that its parent company's staff 
would provide support for the U.S. office, but found that this claim was a "material correction'' to 
the petition because the Petitioner had not mentioned the foreign staff at the time of tiling. 
On appeal, the Petitioner asserts that the Director should have considered the foreign employees and 
the organization as a whole when determining whether there are sufficient employees to relieve the 
Beneficiary from performing non-qualifying duties in the United States. In addition, the Petitioner 
emphasizes that it has consistently stated that the Beneficiary would be hiring up to two employees 
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Matter of V-T- Inc 
during the next year. The Petitioner maintains that it provided a detailed position description and 
sufficient evidence to show that the Beneficiary would be employed in a managerial or executive 
capacity. 
When examining the managerial or executive 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 or executive capacity. See 8 C.F.R. ~ 214.2(1)(3)(ii). Beyond the required description of 
the job duties, USCIS examines 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. 
A. Duties and Staffing 
The Petitioner is a technology consulting company with no current employees, which is seeking to 
expand its business activities in the United States:
1 
At the time of filing, the Petitioner indicated that 
the Beneficiary would perform the following duties as vice president: 
1. Evolve strategies and programs to grow the USA subsidiary 
2. Completely manage the responsibilities of all operations m the United States 
which include. but are not limited to. the following: 
a. Re-validate & strengthen positioning of our services for the US market 
b. Hire 3 to 5 Senior Managers 4 for sales and delivery for sourcing and co-
executing the client engagements in US 
c. Optimize the delivery model between US and India entities ... 
d. Provide key strategic input and governance directives ... 
e. Manage finance operations. Personnel and Human Resources development 
policies 
3. Report back to the foreign parent company in India 
4. Identify potential business deals & merger/acquisition targets 
Later, in response to an RFE, the Petitioner described the Beneficiary's proposed role as "an 
Executive position where [the Beneficiary] will be responsible for the key function of the 
organization namely growing the business by working with Small and Medium Businesses (SMB) 
market in the United States:· The Petitioner provided a lengthy description of his proposed duties. 
' The Petitioner paid approximately $169,000 in "contract staffing" according to its 2015 tax return, but $0 in salaries 
and wages. 
4 
ln an accompanying business plan. the Petitioner indicated that it would hire one or two consultants to deliver services 
to customers in 2017. with plans to hire a sales manager and additional consultants in 2018. The business plan does not 
indicate the Beneficiary would be hiring ''3 to 5 Senior Managers·· as stated in his job description. 
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Matter of V- T- Inc 
noting that he would focus on: (I) developing partner relationships; (2) market and business 
development; (3) resource management, including the hiring, supervision and development of five 
senior managers (sales, pre-sales, delivery management) and 18 to 20 consultants in the first three 
years of operations; (4) engagement and delivery management; and (5) strategic management and 
corporate governance. 
The Petitioner indicated that it had set up "support functions·· for the Beneficiary to ensure that he 
could focus on the strategic and executive management of the business. Specifically. the Petitioner 
stated that the foreign entity"s human resources and technical teams would assist with recruiting, 
while the foreign entity's administrative assistant will assist the Beneficiary with his travel 
arrangements. Further, the Petitioner stated that the foreign entity's finance, billing. and accounting 
teams would be responsible for assisting the U.S. office with the Beneficiary's expense settlements, 
customer invoicing, accounts receivable and accounts payable. internal bookkeeping and taxes. and 
payroll. Finally, the Petitioner stated that the foreign entity's "Pre-Sales and Cold Calling teams'' 
would assist the Beneficiary with market and business development functions during the "initial 
period.'' 
B. Analysis 
Based on the definitions of managerial and executive 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 primarily engage in managerial or executive duties, as opposed to ordinary 
operational activities alongside the company's other employees. See Family Inc. v. USC!S. 469 F.3d 
1313. 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. Here, the Petitioner did not 
consistently indicate whether the Beneficiary would be employed in a managerial capacity or 
executive capacity, so we will consider his eligibility under both statutory definitions. 
1. Personnel Manager 
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 
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 10l(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(1)(1 )(ii)(B )(3). 
We agree with the Director's determination that, because the Petitioner had no employees at the time 
of filing. the Beneficiary cannot qualify as a personnel manager. The Petitioner must establish that 
all eligibility requirements for the immigration benefit have been satisfied from the time of the filing 
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Matter of V- T- Inc 
and continuing through adjudication. 8 C.P.R.§ 103.2(b)(l). For this reason, the Petitioner's future 
hiring plans will not be taken into account. 
Further. even if we were to consider future hiring, the Petitioner has submitted inconsistent 
information regarding its staffing plans. The Petitioner's business plan indicates that the company 
would hire only one or two consultants in the immediate future and add a sales manager in 2018, 
while the Petitioner elsewhere claims that the Beneficiary would be charged with hiring as many as 
three to five "senior managers" and up to 20 consultants. In either case, the Beneficiary would not 
have any such staff available to assist him with sales or service delivery immediately upon approval 
of the petition and the hiring plans will not be considered in determining his eligibility as of the date 
of filing. 
For this reason, we cannot conclude that the Beneficiary would be employed in a managerial 
capacity as a "personnel manager'' as such employees are required to primarily supervise and control 
the work of other supervisory, professional, or managerial employees. 
2. Function Manager 
The Petitioner claims, m the alternative, that the Beneficiary will manage or direct its business 
development function. 
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 I 0 I (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 per{orm, the function; (4) the beneJiciary 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 o{ Cl­
Ine. Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
Here, although the Beneficiary would have authority over U.S. business development as the vice 
president and the Petitioner's sole employee. the Petitioner did not establish that his actual duties 
would involve primarily managing, rather than performing. the day-to-day operations of the 
function. 
In determining the Beneficiary's actual duties, we must consider the totality of the record and weigh 
all relevant factors, including: the nature and scope of the petitioner's business; the petitioner's 
organizational structure, staffing levels, and the beneficiary's position within the petitioner's 
organization; the scope of the beneficiary's authority; the work performed by other staff within the 
petitioner's organization (and related foreign entities), including whether those employees relieve the 
beneficiary from performing operational and administrative duties; and anv other factors that will 
contribute to understanding the beneficiary's actual duties and role in the bu;iness. 
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Matter of V- T- Inc 
We disagree with the Director's decision to disregard the Petitioner's claims regarding the support to 
be provided by the foreign entity's staff. The Petitioner was asked to provide additional information 
to explain how the unstaffed U.S. office would support the Beneficiary in a managerial or executive 
capacity and the Petitioner provided this information in response to the RFE; we do not consider the 
Petitioner's response to represent a material change to the initial petition. Given that the Petitioner 
has previously achieved profits in the United States despite not having a permanently staffed oftice, 
it is reasonable to believe that foreign staff can and will support some of the U.S. otlice's functions. 
However, based on the Petitioner's description of the Beneficiary's proposed duties, and its brief 
descriptions of the support functions to be performed by foreign staff: the Petitioner has not shown 
how the Beneficiary would be relieved from performing the day-to-day duties related to business 
development or how he would be able to primarily manage this function. Further, the Beneficiary 
will be required to perform other non-managerial duties outside of this function which preclude a 
finding that his actual duties would be primarily managerial in nature. 
Most of the support activities attributed to the foreign staff are unrelated to the Beneficiary's 
responsibility for business development, but instead are focused on human resources, administrative 
functions, billing, accounting, and finance. While the foreign statl will relieve the Beneficiary from 
involvement in certain routine matters within the U.S. office, it has not been shown that the staff will 
substantially assist him with his responsibility for market and business development. The Petitioner 
stated that the foreign entity's "Pre-Sales and Cold Calling" teams would assist with market and 
business development, but did not provide sufficient detail regarding the nature or scope of the tasks 
they would perform. The Petitioner indicated that the Beneficiary himself is responsible for 
identifying new opportunities in the market, building client relationships, and suggesting solutions to 
meet client needs. These research and client-facing duties have not been shown to be managerial in 
nature. The record therefore does not support the Petitioner's claim that the Beneficiary would 
primarily manage the market and business development function or indicate how much of his time 
would be allocated to this function. For these reasons, the Petitioner has not established that the 
Beneficiary will be employed as a function manager. 
3. Executive Capacity 
The statutory definition of the term "executive capacity'' focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 10l(a)(44)(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and ''establish 
the goals and policies" ofthat organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and they must primarily focus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial 
employee. A beneficiary must also exercise '·wide latitude in discretionary decision making'' and 
Matter ()( V- T- Inc 
receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." !d. 
While the Beneficiary may have authority over the company's goals and policies, the Petitioner did 
not show that he would have a subordinate management-level employees as of the date of tiling. or 
that he would primarily focus on executive duties rather than on the day-to-day operations of the 
company. 
We must take into account the reasonable needs of the organization and that a company's size alone 
may not be the only factor in denying a visa petition for classification as an L-1 A intracompany 
transferee. See section 10l(a)(44)(C) of the Act. However, it is appropriate for USCIS to consider 
the size of the petitioning company in conjunction with other relevant factors, such as the absence of 
employees who would perform the non-managerial or non-executive operations of the company. 
Family Inc. v. USCJS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. JM), 153 F. Supp. 2d 7, I 5 
(D.D.C. 2001). 
The Petitioner did not submit evidence that it employs subordinate sta!T to perform any of the actual 
day-to-day, non-executive operations of the company, nor has it sufficiently established that these 
activities will be primarily performed by its foreign parent company's staff. For example, the 
Petitioner did not identify staff that would perform non-executive duties associated with the 
Beneficiary's responsibilities for developing partner relationships and engagement and delivery 
management. The Beneficiary has the authority to contract with partners, but the Petitioner has not 
shown that the underlying research involved in identifying and evaluating potential partners is an 
executive duty, or established that such tasks would be delegated to someone else. Similarly, the 
Petitioner indicates that the Beneficiary will manage engagement and delivery and have the ability to 
develop the company's delivery model for U.S. customers, but the Petitioner has also indicated that 
it will initially have no consulting statT and it is unclear who would assist the Beneficiary with client 
engagements. It does not appear that the immediate reasonable needs of the petitioning company 
would plausibly be met by the services of the Beneficiary as vice president and the foreign entity's 
employees, or that it would have a reasonable need for the Beneficiary to perform primarily 
executive duties. 
In sum, the fact that the Beneficiary manages or directs a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of section 101(a)(44) of the Act. By statute, eligibility for this classification 
requires that the duties of a position be "primarily" managerial or executive in nature. Sections 
101(A)(44)(A) or (B) of the Act. Even though the Petitioner has demonstrated that the Beneficiary 
would exercise discretion over the Petitioner's day-to-day operations and with respect to 
discretionary decision-making, it has not submitted evidence sufficient to demonstrate that he would 
primarily perform managerial or executive duties or that it was prepared to employ him in a 
managerial or executive capacity as of the date of filing. 
Malter of V- T- Inc 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary will be employed in a managerial or executive 
capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter ofV-T- Inc, ID# 916101 (AAO Feb. 5, 2018) 
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