dismissed L-1A Case: Video Editing And Photo Retouching

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-S- LLC 
Non-Precedent Decision of the 
Administrativ·e Appeals Office 
DATE: JAN. 25, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which provides video editing and photo retouching services to a film studio, seeks to 
continue the Beneficiary's temporary employment as its chief executive officer under the L-lA 
nonimmigrant classification for intracompany transferees. 1 Immigration and Nationality Act (the Act) 
section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-lA classificationallows 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 record did not 
establish, as required, that the Petitioner will. employ the Beneficiary in a managerial or executive 
capacity under the extended petition. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred by not giving sufficient weight to evidence of the Beneficiary's "high­
level responsibilities" over the company's activities and personnel. We issued a request for evidence 
after additional questions surfaced during review of the appeal. We have considered the Petitioner's 
response to that notice. 
Upon de nova review, we will dismiss the appeal. 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity for one continuous year within 
three years preceding the beneficiary's application for admission into the United States. 8 C.F.R. 
§ 214.2(1)(3)(v)(B). 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. . · 
1 The Petitioner previously filed a "new office'' petition on the Beneficiary's··behalt: which was approved for the period 
May I, 2017 µntil April 30, 2018. 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(1)( I )(ii)(F). The regulation at 
.8 C_.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation one year _within the date of approval of the petition to 
support an executive or managerial position. 
Matter of K-S- LLC 
A petitioner seeking to extend an L-1 A petition that involved a new offi~e must submit a statement 
of the beneficiary's duties during the previous year and under the extended petition; a stat~ment 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
evidence that it maintains. a qualifying relationship with the beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
The Director denied the petition based on a finding that the Petitioner did not establish that it will 
employ the Beneficiary in a managerial or executive capacity. The Petitioner does not claim that it 
seeks to employ the Beneficiary in an executive capacity. Therefore, we restrict our analysis to 
whether the Beneficiary will be employed in a managerial 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. • 
The statutory definition of "managerial capacity" allows for · both "personnel managers" and 
"function managers." See sections 10l(a)(44)(A)(i) and (ii) of the Act. The Petitioner specifies that 
it seeks to employ the Beneficiary as a personnel manager, not a function manager. 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 101(a)(44)(A) of the Act; 8 C.F.R. 
§ 214.2(1)(1 )(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) ofthe Act; 8 C.F.R. §§ 214.2(1)(1)(ii)(B)(2).:(J). 
The Petitioner initially stated that the Beneficiary's subordinates include the following: 
• Personal Assistant 
• Lead Video Editor 
• 3 Video Editors 
• 3 Photo Retouchers 
• Graphic Oirector 
• Graphic Designer. 
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Matter of K-S- LLC 
Although the Beneficiary's job description referred to "[ m )eeting with other managers," the 
Petitioner, prior to the appeal, did not identify any manager~ subordinate·to the Beneficiary. Instead" 
the Petitioner stated: "the organizational structure is designed to be extremely tt'at . . . . [The 
Beneficiary] wiH therefore supervise the entire .team." The organizational chart indicated that the 
lead vi~eo editor supervised the other editors, but otherwise all other employees report directly to the 
Beneficiary. On appeal, the Petitioner modified this asse1iion, stating that the lead video editor and 
lead photo retoucher are managerial positions. At the time of filing, the_ Petitioner did not claim to 
employ a lead photo retoucher. New developments after the filing date cannot establish eligibility. 
See Maller of Michelin Tire Corp., 17 I&N Dec. 248,249 (Reg'! Comm'r 1978). 
The Petitioner asserts that the lead video editor qualifies as a manager by virtue of supervising the 
work of professionals. The Petitioner has also described several other subordinate positions as 
professional. The record, however, does not support this assertion. 
To determine 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 10t'(a)(32) of the Act 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 seminariest 
The Petitioner submitted background information indicating that a bachelor's degree is "usually 
required" for some of the subordinate positions. The Petitioner also submitted copies of four 
"sample job postings." (On appeal, the Petitioner discloses that it never actually published the 
postings.) 
Two postings, for video editor positions, showed no degree requirement. The .remaining two 
announcements were for graphic designer positions. These two announcements share many 
similarities, but only one of them listed a degree requirement (for a "Bachelor's Degree in Graphic 
Design or related field"). The announcements also differed as to ·the experience required. The 
version with no degree requirement called for "2-4 years of experience," while the other version 
required "4-8 years of experience." 
Asked to explain these discrepancies, the Petitioner asserts that the graphic designer and video editor 
positions "require at least a Bachelor's degree," but he adds: "we will also accept equivalent work 
experience ... we do not require that .[appficants] have completed a formal 4 year bachelor's 
degree.'' The Petitioner does not explain what it considers equivalent to a bachelor's degree. 
A combination of education and experience may be considered equivalent to a 
professional degree, but usually only when a substantial amount of specialized 
academic course work is combine_d with employment and training which are 
documented as conveying to the employee professional knowledge and competency. 
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Matter of K-S- LLC 
Normally, this competency is further demonstrated by professional recognition such 
as the employee's membership in professional organizations or associations requiring 
minimum professional standards for admission as a member. 
Matter of Caron Int'!, 19 I&N Dec. 7.91, 798-99 (Comm'r 1988). In this respect, it is significant that 
the statutory definition of "professional" at section IO I (a)(32) of the Act lists fields (such as 
medicine and law) that typically involve licensure rather than self-declaration of a given field as a 
profession. In this instance, the Petitioner has not shown any academic requirement for any of the 
positions subordinate to the Beneficiary. 
The Petitioner's own description of its "organizational structure" as "extremely flat" does not 
support a finding that the Beneficiary spends a significant amount of time supervising the lone 
supervisory employee that the Petitioner initially described. (Also, the lead video editor has 
substantial editing duties of his own, and does not appear to have managerial-level responsibilities 
such as hiring authority.) Subsequent changes to the management structure cannot retroactively 
establish eligibility. 
The ·Petitioner maintains that the Beneficiary's ''significant discretionary authority" is consistent 
with a managerial capacity. Without a showing that the Beneficiary's subordinates are 
professionals, however, the Beneficiary's direct supervision of those subordinates cannot establish 
eligibility. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
it will employ the Beneficiary as a personnel manager under the extended petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-S- LLC, ID# 1690391 (AAO Jan. 25, 2019) 
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