dismissed L-1A Case: Trucking

U.S. Citizenship 
and Immigration 
Services 
MATTER OF EM-T -. LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 26, 2018 
PETITION: FORM 1-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a trucking company, seeks to temporarily employ the Beneficiary as its 
"Administrative Manager/Owner" under the L-1 A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) § I 0 I (a)( 15)(L), 8 U.S.C. 
§I IOI(a)(15)(L). The L-IA classification allows a corporation or other legal entity (including its 
affiliate or subsidiary) to transfer a qualifying toreign employee to the United States to work 
temporarily in an executive or managerial capacity. · 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that: (I) it has a qualifying relationship with the Beneficiary's employer 
abroad; (2) the Beneficiary has at least one continuous year of employment abroad with a qualifying 
organization within the three years preceding the filing of the petition; (3) the Beneficiary was 
employed abroad in a managerial or executive capacity; and (4) the Beneficiary's proposed U.S. 
employment would be in a managerial or executive capacity. 
On appeal, the Petitioner challenges the denial, asserting that it is a "new entity"
1 
and that it meets 
all eligibility requirements. The Petitioner contends that the Director "seems to confuse managerial 
and executive" and asks that we apply the statutory definition of managerial capacity to our analysis 
of the Beneficiary's proposed position 2 
Upon de novo 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 three issues as the Petitioner has not satisfied a fundamental element 
1 A '·new office'' is an organization that has been doing business in the United States through a parent, branch. affiliate, 
or subsidiary for less than one year. 8 C.F.R. § 214.2(l)(l)(ii)(F). Although the Petitioner describes itself as a '·new 
entity,'' when asked whether the Beneficiary was coming to the United States to open a new office at Section I, No. 12 
of the L Classification Supplement. the Petitioner check the "No" box. As the Petitioner did not claim "new office" 
status at the time of filing, the regulations that pertain to a "new office" do not apply to the facts presented herein. 
2 In a response to the Director's request for evidence (RFE), the Petitioner expressly stated that the Beneficiary's 
proposed employment would be in an executive capacity. However, as the Petitioner now claims that the Beneficiary 
would be employed in a managerial rather than an executive capacity, only the Petitioner's most recent claim will be 
addressed in this dcci_sion. 
Mauer of Elvf-T-. LLC 
of eligibility, which requtrcs it to establish that the Beneficiary will work 111 a managerial or 
executive capacity. 
I. LEGAL FRAMEWORK 
To establish eligibility f(Jr the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capaci.ty that is managerial, executive capacity, or involved 
specialized knowledge," for one continuous year within three years preceding the beneficiary's 
application for admission into the United States. Section lOI(a)(lS)(L) of the Act. In addition, the 
beneficiary must seck to enter the United States temporarily to continue rendering his or her services 
to the same employer or a subsidiary or affiliate thereof in a managerial or executive capacity. /d. 
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. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The only issue to be addressed in this decision is whether the Petitioner provided sutlicient evidence 
to establish that the Beneficiary would be employed in a managerial capacity. As the Petitioner's 
initial claim at the time of filing and its most recent claim on appeal indicate that the Beneficiary 
would be employed in a managerial capacity, we will not include a discussion of whether the 
proposed employment would be 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 tor which the employee has authority. Section 
10l(a)(44)(A) of~he Act. 
Beyond the required description of a beneficiary's job duties, U.S. Citizenship and Immigration 
Services (USCIS) examines the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneficiary fi·om 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. Accordingly, we will discuss 
evidence regarding the Beneficiary'sjob duties along with evidence of the nature of the business and 
its staffing levels. 
A. Duties 
In a support letter, the Petitioner stated that the Beneficiary would be employed in a managerial 
position, indicating that the Beneficiary's job duties would include the following: ensure that 
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Maller of EM- T-. LLC 
customer concerns are researched and resolved; stay current with applicable laws and regulations; 
work through subordinates to direct and coordinate activities in the operations department; supervise 
staff in making repairs and maintaining the vehicles, facility, and equipment; assign tariff 
classifications to subordinates and set operational policies and standards; ensure stall' compliance 
with policies and procedures, safety rules, contracts, and government regulations; develop criteria, 
application instructions, procedural manuals, and contracts for government transportation programs: 
and collaborate with stafT"to formulate order." 
In an RFE the Director determined that the original job description was insufficient to establish that 
the Beneficiary would be employed in a managerial capacity. The Director instructed the Petitioner 
to provide a more detailed job description listing the Beneficiary's typical daily managerial duties 
and the percentage of time he plans to allocate to each activity. 
In response, the Petitioner provided a job description claiming that the Beneficiary would be 
employed in an executive capacity. With the exception of omitting the claim that the Beneficiary 
would "continue to ensure that customer problems are researched and corrected," the new and 
previously submitted job descriptions were identical. The Petitioner did not individually list the 
Beneficiary's job duties or assign percentage increments to specify the portion of time he would 
devote to typical managerial duties. Failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds lor denying the petition. 8 C.F.R. § 103.2(b)(l4). 
In the denial decision, the Director acknowledged the prior submissions of two job descriptions and 
found that the Petitioner did not adequately describe the Beneficiary's job duties, noting that certain 
elements of the job description did not state actual duties, but rather paraphrased portions of the 
statute. The Director concluded that the Petitioner did not provide sufficient information to show 
how the Beneficiary would allocate his time and thus it did not establish that the Beneficiary would 
primarily perform managerial duties. 
On appeal, the Petitioner contends that the Beneficiary will assume the role of 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 lor managing an "essential function" 
within the organization. See section IOI(a)(44)(A)(ii) of the Act. If a petitioner claims that a 
bencticiary 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 
bcncticiary will primarily manage, as opposed to pe1jorm, the function; (4) the beneficiary 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." Maller of G­
lnc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
In the present matter, beyond stating that the Beneficiary would assume the role of a function 
manager, the Petitioner does not further pursue this claim or provide any evidence or information to 
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Maller of EM- 'l~. LLC 
support it. The Petitioner does not identify the specific function the Beneficiary would manage or 
provide a detailed description of duties explaining how he would manage that function. Further, 
despite being instructed to provide a more detailed job description, the Petitioner did not comply 
with this request; with the exception of the omitted element concerning the Beneficiary's claimed 
oversight of the Petitioner's customer service element, the Petitioner provided a new job description 
that was almost undistinguishable from the one originally submitted. The Petitioner did not explain 
the reason for omitting this element from the new job description or state who within its organization 
would oversee customer service issues when they arise. The Petitioner must resolve this ambiguity 
in the record with independent, objective evidence pointing to where the truth lies. Muller of Ho, 19 
1&N Dec. 582, 591-92 (BlA 1988). 
Although the Petitioner also claims that the Beneficiary will oversee and coordinate with the 
company's staff and "management" it does not state who comprises the "management," identify the 
operational tasks underlying the essential function that the Beneficiary is claimed to manage, or 
establish that the Beneficiary will retrain from allocating his time primarily to the performance of 
these underlying operational tasks. The fact that the Beneficiary will manage or direct a business 
does not necessarily establish eligibility for classification as an intracompany transferee in a 
managerial capacity within the meaning of section I 01 (a)( 44) of the Act. By statute, eligibility for 
this classification requires that the duties of a position be "primarily" managerial in nature. Sections 
10l(A)(44)(A) of the Act. While a beneficiary may exercise discretion over a petitioner's day-to­
day operations and possess the requisite level of authority with respect to discretionary decision­
making, these managerial elements alone do not establish that the beneficiary will primarily allocate 
his or her time to duties of a managerial nature. As indicated earlier, a detailed job description is 
critical to an analysis of a beneficiary's claimed managerial employment. Reciting a beneficiary's 
vague job responsibilities or broadly-cast business objectives is not sufficient. The actual duties 
themselves reveal the true nature of the employment. Fe din Bros. Co .. Ltd. v. Sovo, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), ojj'd, 905 F.2d 41 (2d. Cir. 1990). 
In the present matter. the Petitioner does not specify the actual tasks the Beneficiary would perform 
in the course of his daily routine. For instance, the Petitioner does not clarify how the Beneficiary 
would oversee "current regulations·· concerning hazardous shipments, employee safety, and ti·eight 
classifications, nor is it apparent that industry regulations change frequently enough such that staying 
"current" requires the Beneficiary's time on a daily, weekly, or even monthly basis. The Petitioner 
also neglects to identify the specific activities of the operations department; it is therefore unclear 
what tasks the Beneficiary performs in order to direct and coordinate the activities of that 
department. 
Further, the Petitioner claims that the Beneficiary will "supervise his staff' to ensure proper repairs 
and maintenance is completed and that he will "manage[] workers in assigning tarifT classifications." 
However, the Petitioner again does not explain how the Beneficiary would carry out his supervision 
and management of employees, nor docs it stale precisely how much time the Beneficiary would 
devote to these personnel management job duties. Likewise, the Petitioner vaguely claims that the 
Beneficiary will monitor operations and manage policies and procedures; it does not, however. 
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Mauer of EM- T-. LLC 
provide detailed information about the specific underlying tasks associated with these vague job 
duties to allow for a meaningful understanding of the specific actions the Beneficiary would carry 
out on a daily or weekly basis. 
Lastly, both job descriptions stated that the Beneficiary will "develop criteria, application 
instructions, procedural manuals, and contracts for federal and state transportation programs. 
However, the Petitioner does not provide sullicient information to establish that these duties are 
managerial in nature, as opposed to operational or administrative tasks. While no beneficiary is 
required to devote I 00% of his or her time to managerial-level tasks, the petitioner must establish 
that the non-qualifying tasks the beneficiary would perform are only incidental to the proposed 
position. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. 
See sections 10l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Marler of Church Scienrology lnr'l, 19 I&N 
Dec. 593, 604 (Comm'r 1988). In the present matter, the Petitioner has not assigned time increments 
to the Beneficiary's listed duties. As such, we are unable to determine who much of his time would 
be allocated to managerial versus non-managerial functions. 
In sum, we find that the Petitioner has not provided suf1icient detail or explanation of the 
Beneficiary's proposed employment. Therefore, it has not adequately supported the claim that the 
Beneficiary would assume the role of either a function or a personnel manager. 
8. Statling 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USC IS takes into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development of the organization. See section I 0 I (a)( 44)(C) of the 
Act. 
As indicated earlier, the statutory definition of "managerial capacity" allows lor both "personnel 
managers" and "function managers." See s·ection IOI(a)(44)(A)(i) and (ii) or 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 l01(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and tire those employees, or 
recommend those actions, and take other personnel actions. 8 C.F.R. § 2 I 4.2(1)(1 )(ii)(B)(J). 
The Petitioner claimed that it had 13 employees at the time of filing. Although the Petitioner claims 
on appeal that the Beneficiary will assume the role of a function manager, as discussed above, it has 
not provided suflicicnt evidence to support this claim. In fact, the Petitioner provided an 
organizational chart depicting the Beneficiary as head of an organization with a subordinate staff that 
Mauer of EM- T-. LLC 
consists of a "supervisor," a yard supervisor/forklift operator, and ten truck drivers. It is unclear 
who, if not the Beneficiary, would actually oversee the Petitioner's non-supervisory and non­
professional personnel. 
In the RFE, the Director observed that the Petitioner did not provide information about the job duties 
or educational credentials of the Beneficiary's subordinates and found that the record lacked 
evidence to show that his subordinates are managerial, professional, or supervisory employees. 
In a response letter. the Petitioner stated that the Beneficiary would "work closely with the 
company's supervisor" in his proposed position. The Petitioner also provided a tive-year business 
plan, which states that the Beneficiary "manages every employee." The business plan states that the 
Beneficiary's subordinates include an operations supervisor and a yard supervisor. It indicates that 
the operations supervisor is responsible for finding sales leads and "making sure [the) truck drivers 
have all that's necessary to complete a job." The business plan states that the yard supervisor is 
responsible for operating forklilis and making local deliveries. Although both subordinates have 
supervisory position titles, their respective job duties do not indicate that either employee's position 
is supervisory in nature; nor does either employee's job description indicate that he assumes a 
professional position where a baccalaureate degree is required 3 
Further, the Petitioner did not provide information establishing who, if not the Beneficiary, would 
follow up on the operations manager's sales leads, nor did it explain who carries out the operational 
and administrative office functions, such as, for example, issuing invoices, collecting payments from 
customers, answering phones, and addressing customer inquiries and complaints. Although the 
business plan indicates that the Petitioner will hire a part-time sales representative "in the short 
term," this position had not been filled at the time this petition was filed. The Petitioner must 
establish that all eligibility requirements for the immigration benefit have been satisfied from the 
time of the tiling and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). Thus, any hiring 
projections, such as those noted in the business plan, are not relevant for the purpose of determining 
whether the Petitioner had the ability to support the Beneficiary in a managerial capacity at the time 
the petition was tiled. As noted earlier. only an employee who "primarily" carries out tasks of a 
managerial nature can be deemed as someone who is primarily employed in a managerial capacity. 
See. e.g., sections IOI(a)(44)(A) of the Act. Here, the Petitioner has not established that it was 
adequately stafted and could relieve the Beneficiary lrmn having to primarily devote his time to Ihe 
organization's operational and administrative functions at the time of tiling. 
Finally, the Petitioner correctly observes that 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 determining whether the 
Beneficiary is or would be employed in a managerial capacity. See section !Ol(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-
3 See 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupalion for which a U.S. baccalaureate degree or iis 
foreign equivalent is the minimum requirement for entry into the occupation"). 
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Maller of EM-lc. LLC 
managerial operations of the company or a company that docs not conduct business in a regular and 
continuous manner. Fami~v!nc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006): Sysrronics Corp. v. INS. 
!53 F. Supp. 2d 7, 15 (D.D.C. 200 I). Here, the Director did consider these relevant factors and 
properly questioned how the Petitioner would support the Beneficiary in a managerial capacity 
within the scope of a two-person support staff that is comprised of non-supervisory and non­
professional employees. 
III. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that it would employ 
the Beneficiary in a managerial capacity, as claimed. As this element is timdamental to establishing 
eligibility and the Petitioner has not met this threshold requirement, we will not address the three 
remaining grounds that the Director cited in the denial decision. 
ORDER: The appeal is dismissed. 
Cite as Maller of EM-T-. LLC, ID# 1143417 (AAO Apr. 26, 20 18) 
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