dismissed L-1A Case: Transportation

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-E-G- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 30, 2018 
PETITION:· FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a bus company, seeks to temporarily employ the Beneficiary as its administration 
manager under the L-1 A non immigrant classification for intracompany transferees. Immigration and 
Nationality Act (the Act) section IOI(a)(l5)(L), 8 U.S.C. § l 10l(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 record did not 
establish, as required, that: (1) the Beneficiary had one continuous year of qualifying employment 
abroad during the three years preceding the filing of the petition; (2) the Petitioner will employ the 
Beneficiary in the United States in a managerial or executive capacity; and (3) the Beneficiary has 
been employed abroad in a managerial or executive capacity. 
The matter is now before us on appeal. On appeal, the Petitioner asserts that the Director did not 
sufficiently consider the Petitioner's response to a request for evidence (RFE). 
Upon de novo review, we will dismiss the appe!:11. 
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 beneficiary's application for 
admission into the United States. Section 101(a)(l5)(L) of the Act. In addition, the beneficiary 
must seek to enter the United States temporarily to continue rendering his or her servic_es 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 perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
II. ONE YEAR OF CONTINUOUS EMPLOYMENT ABROAD 
The Director found that the Beneficiary did not have the required minimum length of qualifying 
employment abroad. To qualify as an intracompany transferee, a beneficiary must have been 
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Ma11er'of E-E-G- LLC 
employed abroad continuously for one year during the three years before the petition filing date, by 
the petitioner or a qualifying related entity. 8 C.F.R. § 214.2(1)( 1 )(ii)(A). 
Time spent in the United States interrupts the continuity of foreign employment, except for Brief 
trips for business or pleasure and periods spent in lawful status for a qualifying U.S. employer do not 
interrupt the continuity of qualifying foreign employment, but that time cannot count toward the 
beneficiary's required period ofemployment abroad. Id. 
The Petitioner's foreign affiliate stated that it employed the Beneficiary "from August 12, 2016 to 
the present." August 12, 2016, fell on a Friday. Copies of pay receipts show a slightly later date, 
Monday, August 15, 2016. The Petitioner filed the petition 413 days later, on October 2, 2017. 
U.S. government records show that the Beneficiary entered the United States on 57 different days 
during the time of his employment abroad. 1 The Beneficiary entered as a B-2 nonimmigrant visitor 
for pleasure. In the RFE, the Director advised the Petitioner that these brief visits did not interrupt 
the continuity of the Beneficiary's employment, but time spent in the United States cannot count 
toward the required continuous year of employment abroad. See 8 C.F .R. § 214.2(1)( 1 )(ii)(A). 
In response, the Petitioner did not dispute the records of the Beneficiary's entries into the United 
States. The Petitioner stated that the Beneficiary frequently travels on business to 
Mexico, near the U.S. border. The Petitioner asserted that, during these trips, the Beneficiary 
"sometimes crosses ... into Texas or he'll occasionally come to our location." The 
Petitioner provided no evidence or information regarding the length of the Beneficiary's visits. 
The Director denied the petition, stating that the Beneficiary had accrued less than 365 days of 
qualifying employment, because days when the Beneficiary was in the United States cannot count 
toward his employment abroad. On appeal, counsel for the Petitioner states that, "on many 
occasions," the Beneficiary "returned to Mexico ... within hours after crossing into the U.S." 
Assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 
(BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). Counsel's . . . 
statements must be substantiated in the record with independent evidence, which may include affidavits 
and declarations. In this instance, counsel does not provide corroborating evidence or cite the source 
of this information. 
The Petitioner, on whom the burden of proof rests, does not document the length of the Beneficiary's 
visits to the United States. (The available records show the Beneficiary's entries but not most of his 
departures.) Likewise, the Petitioner does not show that the Beneficiary worked in Mexico on the 
days when he traveled into the United States. Payroll records are not dispositive on this point, 
because the foreign entity pays the Beneficiary a fixed salary rather than an hourly wage. 
1 The Director cited 60 entries, but on a few occasions the Beneficiary entered twice on the same day. 
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Maller of E-E-G- LLC 
The Petitioner adds that "some entries were on the weekends." Records show 12 weekend entries. 
The Petitioner does not show when the Beneficiary returned from these visits, and therefore there is 
no affirmative evidence that the Beneficiary returned later during those same weekends. Likewise, 
in the absence of a documented work schedule, it is not evident that the Beneficiary would have been 
off on those weekend days. The available evidence simply does not tell us enough about the 
Beneficiary's many trips to the United States to establish that they did not prevent him from accruing 
a continuous year of full-time employment abroad. 
The Director also stated that, if the Beneficiary worked· for the Petitioner during his visits to the 
United States, then he violated his 8-2 nonimmigrant status, which did not authorize him to work in 
the United States. On appeal, the Petitioner condemns "baseless accusations that beneficiary has 
been working for petitioner in violation of his immigration visa." The Director did not make any 
definitive finding that the Beneficiary violated his B-2 status; the Director simply observed that, if 
the Beneficiary had worked directly for the Petitioner in the United States, then such work would 
have violated his status. The Petitioner raised this possibility with its ambiguous assertion that the 
Beneficiary occasionally traveled to a U.S. work site and, while there, performed job-related 
functions such as "conferences." 
For the reasons discussed above, the Petitioner has not met its burden to establish that the 
Beneficiary accrued one year of continuous, full-time employment with a qualifying organization 
abroad. · 
III. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial capacity. (The Petitioner does not claim that the Beneficiary will be or has been 
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; 
1 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 
10l(a)(44)(A) of the Act. 
When examining the managerial or executive capacity of a given beneficiary, we will look 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). Beyond the required description of 
the job duties, we examine the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneficiary from performing 
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Matter of E-E-G- LLC 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role in a business. Accordingly, we will discuss 
evidence regarding the Beneficiary's job duties along with evidence of the nature of the Petitioner's 
business and its staffing levels. 
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. 
A. Duties 
The Petitioner stated that the Beneficiary's position would include the duties summarized below: 
• Create work schedules 
• Implement reward and recognition programs 
• Review administrative processing procedures and make recommendations to the regional 
director 
• Oversee and manage financial accountability 
• Supervise and evaluate the work of supervisors and team leaders 
• Hire and fire subordinates within the administration department 
• Make daily decisions on t~e activities and functions of managers and their subordinates 
In the RFE, the Director stated that the Beneficiary's job description was too vague to establish 
whether the Beneficiary's duties would be primarily managerial, executive, or neither. The Director 
asked for additional details and the "approximate percentage of time devoted to each task." 
In response, the Petitioner rearranged the original job description to conform to the four elements of 
the statutory definition of managerial capacity, with minimal substantive revisions. The Petitioner 
did not provide specific time estimates for individual tasks, as requested. Instead, the Petitioner 
stated that all the listed activities would collectively occupy 90% of the Beneficiary's time, with the 
remainder "spent generating reports, and conducting/scheduling meetings or personally handling 
miscellaneous matters (i.e., customer complaints, vendor's phone calls, etc.)." 
The Director denied the petition, finding that the Beneficiary's job description "in large part . 
simply paraphrase[d] statute for an L-lA manager." On appeal, the Petitioner maintains that it "has 
provided sufficient documentation and a detailed explanation as to each of the four requirements for 
meeting the managerial capacity at the U.S. Entity." The record does not support this assertion. 
After the Director first requested additional details, the Petitioner submitted what it said was a more 
. detailed job description, but we can find no significant new details in the revised job description. 
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Matter of E-E-G- LLC 
By itself, the assertion that the Beneficiary will oversee the work of subordinates tells us little about 
how the Beneficiary will exercise that oversight; the same is true for describing the activities of a 
department, and asserting that the Beneficiary will oversee that department. As far as describing the 
Beneficiary's oversight, the Petitioner stated, for example, that the Beneficiary will create work 
schedules, recognize achievements, create policies, and review procedures. The Petitioner did not 
show how these activities will make significant, ongoing demands on his time, and did not comply 
with.the Director's request to specify how much time the Beneficiary "devoted to each task." 
For the above reasons, the Petitioner did not provide enough information to show that the 
Beneficiary's intended position would be primarily managerial in nature. 
B. Staffing 
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. 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 Petitioner has not claimed that the 
Beneficiary will m~nage an essential functi<;m. 
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." Section 10l(a)(44)(A) of the Act; 
8 C.F.R. § 214.2(l)(l)(ii)(B)(4). 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; 8 C.F.R. 
§ 214.2(1)(1 )(ii)(B)(2)-(J). 
The Petitioner referred to some of the Beneficiary's prospective U.S. subordinates as 
"managers/supervisors," but did not claim or establish that any of them qualify as professionals. The 
Petitioner stated that the Beneficiary would supervise three managers and their subordinates. The 
information provided is summarized below. 
Accounting Manager, $48,000/yr. 
Responsibilities: Oversee preparation and analysis of accounting records and 
financial reports 
Subordinate: Bookkeeper 
Sales Manager, $40,000/yr. 
Responsibilities: Oversee sales division, prepare market analyses, provide sales 
strategies, create programs to recognize and reward sales achievements, establish and 
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Matter of E-E-G- LLC 
implement sales-related approaches 
Subordinates: 3 Sales Representatives 
Operations Manager, $35,000/yr. 
Responsibilities: Establish efficient routes, establish policies to increase efficiency, 
comply with budget 
Subordinates: Logistics Technician, Clerks (unspecified number) 
The Director requested job descriptions for all the Beneficiary's subordinates, to determine whether 
any of them qualify as managers, supervisors, or professionals. The Petitioner's response repeated 
the job descriptions for the three highest-lever subordinates, adding brief descriptions for the 
remaining posit.ions. 
In the denial notice, the Director acknowledged that there were two levels of subordinate employees, 
but concluded that the Petitioner had not provided sufficient information to establish that the 
Benefi~iary's intended higher-level subordinates hold positions "that could be primarily managerial 
or supervisory in nature." 
On appeal, the Petitioner states that the Director "has failed to review or refuse[ d] to adequately 
address the documents that [were] submitted . . . such as petitioner's detailed letter, detailed 
organizational chart, and· pay record[s]." The payroll documents estabiish the employment of the 
workers, but not that they hold primarily supervisory or managerial positions. 
The Petitioner asserts that the Director unreasonably requires "c,1 complete encyclopedic job 
description" for every subordinate position. The Petitioner, here, overstates what the Director 
required. The Director did not require long, detailed job descriptions, but the Petitioner must still 
establish that the activities of the lowest-level employees warrant dedicated managerial or 
supervisory oversight. For instance, the Petitioner asserts that the accounting department consists of 
an accounting manager with one subordinate (a bookkeeper). The Petitioner has not established that 
the oversight of this one subordinate involves enough work to constitute the accounting manager's 
primary responsibility. It cannot suffice simply to assert that the bookkeeper maintains financial and 
payroll recor~s, and that the accounting manager oversees that work. 
Based on the deficiencies discussed above, the Petitioner has not established that it will employ the 
Beneficiary in a primarily managerial capacity in the United States. 
IV. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY 
The Petitioner asserted that its foreign affiliate employs the Beneficiary as its administration 
manager. The Director found that the Petitioner had not established that this foreign employment, 
like the intended U.S. employment, was in a primarily managerial capacity. 
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Matter of E-E-G- LLC 
A. Duties 
The English translation of the foreign employer's description of the Beneficiary's duties abroad is 
largely identical to the description of his intended duties in the United States, as summarized above. 
Asked· for more details about the Beneficiary's foreign duties, the Petitioner acknowledged that the 
Beneficiary's "managerial duties [at] our foreign affiliate are very similar to the duties required for 
[the U.S. position]." As noted earlier in the decision," the minimally revised job description shed 
little light on the nature of the Beneficiary's work and did not establish the time devoted to 
individual tasks. As was the case with the U.S. subordinates, the foreign entity indicated that the 
Beneficiary spent 90% of his time on the generally described responsibilities. 
In the denial notice, the Director noted ·that the record lacks not only details about the Beneficiary's 
duties, but also documentary evidence that he had performed the general tasks described. On appeal, 
the Petitioner states: 
It appears that the Service failed to review the foreign entity's organizational chart, 
pay records of workers under beneficiary's supervision, and the detailed letters 
explaining beneficiary's managerial duties and percentage (90%) spent therein .... I 
strongly believe that petitioner and beneficiary have submitted sufficient evidence of 
managerial capacity abroad. 
The Petitioner does not explain how the submitted materials overcome the Director's findings. 
When the Director requested additional details about the Beneficiary's duties, the foreign entity 
provided largely the same job description, with the individual elements rearranged. The assertion 
that the bulk of the Beneficiary's duties collectively occupy 90% of his time does not show the time 
devoted to each task as the Director requested. 
B. Staffing 
Between an organizational chart submitted initially and job descriptions submitted in response to the 
RFE, the Petitioner provided the following information about the Beneficiary's subordinates abroad: 
Operations Manager 
Responsibilities: Oversee establishment of efficient routes, establish policies to 
increase efficiency, comply with budget 
Subordinates: Operators, Analysts, Clerks 
Marketing Media Manager 
Responsibilities: Oversee marketing strategies 
Subordinates: Assistants, General Clerk 
Logistics/Safety Manager 
Responsibilities: Oversee compliance with regulatory safety standards 
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Matter of E-E-G- LLC 
Subordinates: Information Analysts 
Accounting Manager 
Responsibilities: Oversee preparation and analysis of accounting records and 
financial reports 
Subordinates: Clerk, Bookkeeper · 
Sales Manager 
Responsibilities: Oversee sales division, prepare market analyses, provide sales 
strategies, create programs to recognize and reward sales achievements, establish and 
implement sales-related approaches 
Subordinates: Sales Representatives 
5 Terminal Managers 
Responsibilities: Oversee terminals and staff, report to the Beneficiary daily 
Subordinates: Not specified · 
The Director found that, although the Beneficiary's subordinates had subordinates of their own, the 
Petitioner had not sufficiently demonstrated that the upper-level subordinates qualify as managers, 
supervisors, or professionals. 
On appeal, the Petitioner states: . "The mere[] fact that a degree is not required for the individuals 
who work under beneficiary does not mean that that particular worker ... is not a professional or 
manager." T~e lack of a degree requirement, however, is directly relevant to the question of whether 
a given position is professional. C-.'f. 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 101(a)(32) of the Act states that '"[t]he term 
pn~fession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, 
and teachers in elementary or secondary schools, colleges, academies, or seminaries." All these 
positions require at least a bachelor's degree. 
. , 
A position can be primarily managerial or supervisory without a degree requirement, but the burden 
is on the Petitioner to establish the nature of the position. With respect to the Beneficiary's 
immediate subordinates a.broad, the Petitioner largely described the functions of their departments 
and asserted that the subordinates oversee those departments and their respective personnel. To 
assert, for instance, that the accounting manager "oversees [the] entire accounting division" indicates 
the level of that person's responsibility, but does not tell us about the duties or tasks that the position 
entails. The accounting manager has two subordinates - a clerk and a bookkeeper - and the 
Petitioner has not shown that those two positions warrant full-time oversight and supervision by a 
dedicated employee, such that the accounting manager's own position does not predominantly 
involve accounting functions and related tasks. 
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Matter of E-E-G- LLC 
The foreign staff that the Beneficiary oversees is larger than the staff of the petitioning U.S. entity, 
and therefore it is more plausible that some of the Beneficiary's immediate subordinates are, 
themselves, primarily supervisors or managers, but plausibility alone cannot meet the Petitioner's 
burden of proof. Despite the Petitioner's protestations that it has submitted ample evidence, the 
Petitioner has documented little more than evidence that it has employees. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary 
was employed in a managerial or executive capacity abroad. 
V. CONCLUSION 
The Petitioner did not establish that the Beneficiary has qeen, and will be, employed in a primarily 
managerial capacity. The Petitioner also did not establish that its foreign affiliate employe~ the 
Beneficiary for at least one continuous year during the three years prior to the filing date. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-E-G- LLC, ID# 1448542 (AAO Aug. 30, 2018) 
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