dismissed L-1A Case: Tennis Academy

MATTER OF E-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 7, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: · FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a tennis academy, seeks to temporarily employ the Beneficiary as its marketing director 
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-=IA 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 was employed abroad and would be employed in the 
United States in a managerial or executive capacity. 
On appeal, the Petitioner disputes the Director's findings, claiming that the Beneficiary has been and 
will be employed in a managerial capacity. 
Upon de nova review, we will dismiss the appeal because the Petitioner has not established that the 
Beneficiary will be employed in the United States in a managerial or executive capacity. However, 
we will reserve the remaining issue regarding the Beneficiary's foreign employment as the Petitioner 
has not satisfied a fundamental element of eligibility regarding the Beneficiary's proposed 
employment with the U.S. entity. 
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 
knowledge," for one continuous year within three years preceding the ~eneflciary's application for 
admission into the United States. Section I 01 (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. Id. The 
petitioner must also establish that the beneficiary's prior education, training,· and employment 
qualify him or her to perfom1 the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
Matter of E-, Inc. 
II. MANAGERIAL CAPACITY IN THE UNITED STATES 
The Petitioner claims that the Beneficiary's proposed U.S. employment will be in a managerial 
capacity. As the Petitioner does not claim that the Beneficiary would be employed in•an executive 
capacity, we will limit our discussion to addressing the Petitioner's claim and will not consider 
whether the Beneficiary would be employed in an executive capacity. 
' 
"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 
101(a)(44)(A) of the Act. 
Based on the statutory definition of managerial capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibil.ities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also 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 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 the Beneficiary's subordinate employees, the presence of other employees to 
relieve the Beneficiary from performing operational duties, the nature of the business, and any other 
factors that will contribute to understanding the Beneficiary's actual duties and role in a business. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Supporting Evidence 
The petition form was filed in February 2018 and indicates that the Petitioner was established in 
2010, had "4-5" employees at the time of filing, and would compensate the Beneficiary $35,000 
annually in his· proposed position. In a supporting cover letter, the Petitioner stated. that the 
Beneficiary would work 60- 70 hours per week as "Marketing/Commercial Director" of a new 
department where he would "be in charge of entertainment, tourism, logistics, and marketing aspects 
of the company"; it explained that the Beneficiary will develop entertainment programs for the 
parents of its foreign-based customers. The Petitioner provided a job description, which indicates 
that the Beneficiary will spend 57 hours weekly, thus most of his time, performing operational and 
administrative job duti~s, including contacting old and new customers for feedback, promoting 
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Matter of E-, Inc. 
newly offered services, researching and analyzing local and international markets to find better 
promotion strategies, analyzing negative customer feedback, contacting appropriate parties to 
resolve accounting and administrative issues, searching for and meeting with vendors, networking 
with potential business partners, organizing corporate events, and training "management" and "key 
personnel." 
The Petitioner also discussed hiring projections, stating that it plans to hire a sales manager during 
the department's second year of operation and fill four additional subordinate positions in the 
Beneficiary's department within the first five years of the department's operation; it stated that it 
seeks to ultimately fill eight new positions within five years. The Petitioner also provided a business 
plan discussing its future hiring and financial projections. According to the Petitioner's statement 
and the organizational chart contained in its business plan, the Beneficiary's department was entirely 
unstaffed at the time this petition was filed. 
In a request for evidence (RFE), the Director instructed the Petitioner to describe the Beneficiary's 
job duties and to provide an organizational chart showing its staffing structure, employee names, 
position titles, and job descriptions. The Petitioner was also asked to provide its quarterly wage 
reports for 2017, copies of the Petitioner's payroll summary, employment contracts, and IRS Forms 
W-2, W-3, and 1099-MISC. 
In response, the Petitioner explained that the staffing structure discussed in the business plan is a 
projection of future hires and noted that new employees have not been hired yet to staff the new 
marketing department. The Petitioner stated that it plans to hire a marketing manager, a pub! ic 
relations specialist, and a sales representative upon the Beneficiary's arrival. The Petitioner did not 
provide a job description of the duties the Beneficiary would perform based on the staffing it had 
available at the time of filing. Rather, it stated that the Beneficiary will initially work 60 hours per 
week and provided a job duty breakdown using percentages and hourly increments to explain how 
the Beneficiary will distribute his time among his assigned duties within the scope of its projected 
personnel plan. The Petitioner stated that 68% of the Beneficiary's time will be spent working 
through a marketing manager, sales representative, and public relations specialist to "collect and 
analyze the necessary information from the potential and old customers to create new service 
packages" for customers, create a database as a basis for developing marketing strategies, analyze 
negative customer feedback, and examine the performance of social media and online tools. The 
Petitioner clarified that the goal of the marketing department is to create entertainment packages for 
existing and new customers and to market these new services locally and internationally through 
"new PR strategies." The Petitioner did not provide any payroll or wage evidence. 
In the denial decision, the Director observed that the Petitioner described the Beneficiary's proposed 
position within the context of a projected, rather than an existing, personnel plan. The Director 
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Matter of E-, Inc. 
acknowledged that although the Petitioner does not claim to be a "new office," 1 its job description is 
based on future hires and developments, which is common in a new office petition. The Director 
determined that the Petitioner's current organizational hierarchy lacks subordinates to assist the 
Beneficiary and concluded that the Petitioner's staffing at the time of filing was not sufficient to 
support the Beneficiary in a managerial position. 
On appeal, the Petitioner contends that it hired the Beneficiary "for the purpose of organizing and 
developing of the marketing department of the existing business," arguing that it "is perfectly legal" 
to transfer the Beneficiary to the United States for this purpose. 
B. Analysis 
We find that the Petitioner has not established that it had the ability to support the Beneficiary in a 
managerial position based on the circumstances that existed at the time of filing. 
Although the Petitioner is correct in asserting that it is not unlawful to transfer the Beneficiary to the 
United States for the above stated purpose, by statute, eligibility for this classification requires that 
the duties of the proposed position be "primarily" managerial in nature. Section 10l(A)(44)(A) of 
the Act. The fac.t that the Beneficiary will have discretion in developing and managing the U.S. 
entity's marketing department does not necessarily establish eligibility for classification as an 
intracompany transferee in a managerial or executive capacity within the meaning of section 
10l(a)(44) of the Act. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10l(a)(44)(A) 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." See id. 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)( I )(ii)(B)(3). 
As a threshold matter, we note that 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. § 103.2(b)(l). The Petitioner in this instance provided an organizational 
chart depicting a staff that had not yet been hired at the time of filing. By its own admission, the 
Petitioner's marketing department was devoid of personnel at the time this petition was filed. It is 
1 The tenn "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. 
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Matter of E-, Inc. 
therefore unclear who, other than the Beneficiary, would be available to carry out the underlying 
operational job duties of that department. 
While the Beneficiary is not required to allocate 100% of his time to managerial-level tasks, the 
Petitioner must establish that the non-managerial tasks of the proposed position would only be 
incidental to, as opposed to the main focus of, that 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, e.g., sections 101 (a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); Matter ol 
Church Scientology Int ·1, 19 I&N Dec. 593,604 (Comm'r 1988). 
Here, the Petitioner focused on the Beneficiary's position title and. discretionary authority without 
adequately considering the lack of a support staff who would relieve the Beneficiary from having to 
carry out the operational tasks of the marketing department that the Beneficiary was hired to 
manage. The Petitione{. also neglected to properly consider that the effect of this deficient staffing 
structure would result in the Beneficiary having to perform primarily non-managerial job duties. 
The Petitioner cannot effectively demonstrate that the Beneficiary would be employed in a 
managerial capacity when it had no employees to supp01i the Beneficiary and take over the 
performance of the operational and administrative tasks of the marketing department. The Petitioner 
must support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 
25 I&N Dec. 369,376 (AAO 2010). 
On appeal, the Petitioner admits that "in the beginning of the employment, [the Beneficiary] will be 
involved in the activities that are less managerial or executive" and focuses on the "need to hire and 
train the personnel for the [ marketing] department." The Petitioner also continues to focus on its 
five-year hiring plan, overlooking the regulatory criteria requiring it to demonstrate eligibility based 
on the facts and circumstances that existed at the time of filing. As discussed above, the record 
indicates that the Petitioner did not have the capacity to relieve the Beneficiary from having to 
allocate his time primarily to non-managerial duties at the time of filing. 
III. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that the Beneficiary 
will be employed in the United States in a managerial capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-, Inc., ID# 1983231 (AAO Feb. 7, 2019) 
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