dismissed L-1A Case: Weather Instruments

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C- INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT.19,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a weather instrument exporter, seeks to extend the Beneficiary's temporary employment 
as its general manager under the L-1A nonimmigrant classification for intracompany transferees. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The L-1A 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, Vermont Service Center, denied the petition. The Director concluded that the record 
does not establish that the Beneficiary will be employed in a managerial capacity under the extended 
petition. 
The matter is now before us on appeal. On appeal, the Petitioner submits additional evidence and 
asserts that the Director made errors of fact and misinterpreted case law. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding )he Beneficiary's application for 
admission into the United States. Section 101(a)(15)(L) of the Act. In addition, the Beneficiary 
must seek to enter the United States tempon!rily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge 
capacity. !d. 
The regulation at 8 C.P.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(l)(l)(ii)(G) ofthis section. 
Matter of C- Inc 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
' 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that 
the alien's prior education, training, and employment qualifies him/her to 
perform1 the intended services in the United States; however, the work in the 
United States need not be the same work which the alien performed abroad. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary would be employed in a managerial capacity under the extended petition. The Petitioner 
does not claim that the Beneficiary will be employed in an executive capacity. Therefore, we restrict 
our analysis to whether the Beneficiary will be employed in a managerial capacity. 
1 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as"an assignment within an organization in which the employee primarily": 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 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; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other .personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. 
Further, "[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." Id. 
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Matter ofC- Inc 
If staffing 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) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 1 01 (a)( 44 )(C) of the Act. 
A. Evidence of Record 
The Petitioner filed the Form I-129 on February 19, 2015. On the Form I-129, the Petitioner 
indicated that it has four current employees in the United States and a gross annual income of 
$635,938. In a letter submitted in support of the initial petition, the Petitioner stated that it is a 
wholesale distribution company providing weather instruments to Latin American markets as well a,s 
the eastern part of the United States. 
The Petitioner stated that, as general manager, the Beneficiary will continue to carry out the 
managerial function of "executing business contacts." Specifically, the Petitioner stated he will 
perform the following duties: 
[The Beneficiary] will continue to direct and coordinate the activities of '[the 
Petitioner] in coordination with [the foreign parent company's] global operations. He 
will continue to be responsible for formulating and administering company policies as 
well as developing long range goals of the company in accordance with [the parent 
company's] objectives. He will do this for 20% of his time. He will review analysis 
of activities, costs and operations and will forecast data to determine the progress 
achieved by the company towards stated goals and objectives. In his sole discretion, 
he will control all of the financial aspects of the corporation, including receiving and 
disbursing funds, and acquiring debt. He will do this for 25% of his time. 
The [Beneficiary] will make decisions as to the areas in which to concentrate 
marketing efforts and as to which methods to utilize to expand client base on the 
research and analysis of market trends and economic conditions. More specifically, 
the [Beneficiary] will supervise the operations related with the purchasing, import, 
export, marketing and staff activities of [the Petitioner]. The [Beneficiary] will 
oversee the service operations of [the Petitioner] and will assume responsibility for 
quality, cost and deliveries. 
The [Beneficiary] ill [sic] meet with top executives of providers in the U.S. territory 
in order to enhance the company's market share in the U.S. The [Beneficiary] will be 
in charge of obtaining new distribution or representations agreements with U.S. 
manufacturers. He will oversee negotiations of substantial contracts and will conduct 
legal negotiations on investments in the United States. He will do this for 5% ofhis 
time. 
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(b)(6)
Matter of C- Inc 
[The Beneficiary] will establish work plans and oversee staffing for each project 
phase. He will arrange for assignment of personnel, and will confer with project staff 
to outline work plans and to assign duties, responsibilities and scope of authority. He 
will direct and coordinate activities of :personnel to ensure project progress on 
schedule and within prescribed budget. He will do this for 15% of his time. 
The Petitioner provided an organizational chart as follows: 
I I 
General Manager 
~ J 
Operation 
Manager 
To be pointed To be pointed I 
~-
I I 
I 
v 
Sales Manager 
I To be pointed 
--Secretary Customer Services Sales Assistant Sales Assistant 
The Petitioner also provided a position description of the operation manager position and the sales 
manager position. The Petitioner provided evidence of staffing levels including copies of 2014 IRS 
Form W-2 Wage and Tax Statement as well as copies of recent paystubs for the Beneficiary and its 
three other employees. 
The Director issued a request for evidence (RFE) on July 31 , 2015 , instructing the Petitioner , in part , 
to submit evidence that the Beneficiary will be employed in a managerial or executive capacity in 
the United States. 
In response to the RFE, the Petitioner submitted a two page sample daily schedule for the 
Beneficiary in his role as general manager. The Petitioner also provided a position description for 
the Beneficiary as follows: 
• Meeting with Managers, to discuss matter pending from the prior week that 
required [the Beneficiary 's] attention to revolve them. 
• Discuss details of distribution and sales, and solve only complicated issues. 
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Matter of C- Inc 
• Review business reports, elaborating business planning, establishing relations 
with providers and customers; answering questions of personnel in order to orient 
them in this field. 
• Formulate strategies and policies of how to receive new clients and retain both, 
old and new via good services, promotion and appealing prices; she also transmit 
therefore her extensive executive experience in this field. 
• Supervise the marketing and distribution manager for the developing and planning 
new strategies to export products to Colombia, depending on the necessities of 
clients and partners, always looking for quality and prices. 
• Prepare and present to business partners abroad all payments made to employees, 
utility services, professional services, etc. for their review 
• Manage policy deployment in the areas of distribution techniques, quality, cost 
reduction, completing on-time delivery safety, employee relations and 
performance measures. 
• Provide all required support/control work for the logistic department of our main 
offices in Colombia and the alliance office for the export of all the orders of said 
offices; she prepares all the exports information to ours [sic] offices in Colombia. 
• Develop ways for increasing inventory curves and reduce levels on hand for 
Petitioner in order to organize the chain distribution properly. 
• Conducts a weekly meeting with all personnel in an effort to satisfy customers' 
specifications, to discuss communication between them and/or advise as to 
solutions of problems presented. 
• Prepare, create and adequate [sic] international business transactions for clients in 
Colombia and later to other countries including but not limited to licensing 
agreement, franchising, international agreements. 
• Procure the development and growth of business alliances. 
• Conduct meetings with his immediate personnel to prepare marketing strategies, 
and to develop advertising plans to promote the company's products. 
• Supervises the sales and operations department to assure a consistent flow of 
information and attainment of sales goals not just for the export but also into the 
United States. 
In addition to the description of the Beneficiary's duties and daily activity log, the Petitioner 
submitted work examples of his work in the form of internal memoranda to subordinate staff. 
The Petitioner provided the same organizational chart submitted with the initial petition. The 
Petitioner submitted its State of Florida Department of Revenue Form UCT-6 Quarterly 
Employment Tax filing for the quarter ending March 31, 2015, the quarter of filing. The returns 
show that the Petitioner employed the four employees named on the organizational chart. In a 
separate document, the Petitioner provided the names, position title, degree, date of employment, 
and annual salary for each employee. The Petitioner stated that the document included "summaries 
of duties" for each employee; however, no job duties were included. The Petitioner did include 
resumes and copies of degrees with uncertified English translations for each employee. 
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Matter of C- Inc 
The Director denied the petition on February 22, 2015, concluding th~t the Petitioner did not 
establish that the Beneficiary would be employed in a managerial capacity under the extended 
petition. In denying the petition, the Director found that the Petitioner did not provide a clear and 
detailed job description. In addition, the Director found that the organization does not appear to be 
of sufficient operational capacity to support the Beneficiary in a primarily managerial role. 
On appeal, the Petitioner submits a brief and a copy of its 2015 IRS Form 1120, U.S. Corporation 
Income Tax Return. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary will be employed 
in a managerial capacity under the extended petition. 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). 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. !d. 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
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 or executive 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 Petitioner's initial position description was stated in broad terms and lacked sufficient detail to 
establish what the Beneficiary would be doing on a day-to-day basis. For example, the Petitioner 
stated that the Beneficiary will "be responsible for formulating and administering company 
policies," "control all financial aspects of the corporation," "make decisions as to the areas in which 
to concentrate marketing efforts," "review analysis of activities, costs and operations," "establish 
work plans and oversee staffing," and "direct and coordinate activities of personnel." Many of these 
duties simply paraphrase the statutory definition of executive capacity and the Petitioner offered no 
additional insight into what specific tasks these responsibilities would entail within the scope of a 
weather instrument sales and distribution business with four employees. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 
1990). Reciting a beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The 
actual duties themselves will reveal the true nature of the employment. !d. 
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Matter of C- Inc 
In response to the RFE, the Petitioner provided a new list of duties, but did not provide the 
percentage of time to be spent on each. Whether the Beneficiary is a managerial or executive 
employee turns on whether the Petitioner has sustained its burden of proving that his duties are 
"primarily" managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. Here, the 
Petitioner did not document what proportion of the Beneficiary's duties would be managerial 
functions and what proportion would be non-managerial. The Petitioner lists the Beneficiary's 
duties as including both managerial and administrative or operational tasks, but fails to quantify the 
time the Beneficiary would spend on them. This failure of documentation is important because 
several of the Beneficiary's daily tasks provided in response to the RFE, such as "prepare and 
present to business partners," "develop ways for increasing inventory curves," 
"prepare, create and adequate [sic] international business transactions," "prepares all the exports 
information to our offices in Colombia," and "procure the development of growth of business 
alliances," do not fall directly under traditional managerial duties as defined in the statute. For this 
reason, we cannot determine whether the Beneficiary would be primarily performing managerial 
duties. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). In 
addition, the description stated that the Beneficiary supervises a marketing and distribution manager. 
This subordinate position, however, does not appear in any of the Petitioner's other submitted 
documentation or organizational charts. 
Finally, we acknowledge the Petitioner's submission of a "daily activity log" that is intended provide 
details of the Beneficiary's work-day. The log, however, did not add further specificity to the broad 
duties described in the two submitted position descriptions, nor did it give a sense of which of the 
two different position descriptions more accurately conveys his actual job duties on a day-to-day 
basis. ' 
c 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including 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. ' 
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. 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(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)-(3). 
Matter of C- Inc 
We note that in the initial organizational chart, and in response to the RFE, the Petitioner provided 
information regarding staff to be hired by the Beneficiary in the future. To the extent that the 
Petitioner plans to staff the company with additional employees, the record shows that those 
employees were not hired as of the date of filing the Form 1-129. The petitioner must establish 
eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be approved 
based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible under 
a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r. 1978); 
Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm'r. 1971). 
On appeal, the Petitioner claims that the Beneficiary relies on the services of 12 employees of its 
Colombian parent company and external service providers to perform some of the day-to-day duties 
of the organization. 1 While the Petitioner has provided a foreign organizational chart, the Petitioner 
has not specified the employees and duties that would be supervised by the Beneficiary in 
performing tasks for the United States entity. Furthermore, the Petitioner has not detailed the work 
that would be performed by external service providers or provided contracts or other evidence of its 
use of external service providers. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (quoting Matter of Treasure Crafi ofCal., 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). 
Regarding subordinate managerial or supervisory employees, the Petitioner's organizational chart 
shows the Beneficiary supervising one sales manager position, who in tum supervises a sales 
assistant position as the time of filing. The Petitioner has not, however, shown that the 
organizational structure supports a first-line supervisor. In fact, the evidence shows that the sales 
manager position is primarily performing the sales work of the organization with the help of an 
assistant, rather than supervising a subordinate sales employee in carrying out the day-to-day sales 
tasks. Specifically, the Petitioner claims that the sales manager position "[ c ]ontacts customers on a 
regular basis," "[ s ]hares details with customers on additional offerings," "[p ]articipates in trade 
shows," "[s]hares ideas and customer needs throughout all phases of product life cycles," and 
"[e]xpedites the resolution of customer problems/complains." Although the Petitioner claims that 
the position will "[ d]irect the accounting, sales and purchases department, and three employees," the 
Petitioner has not actually hired the claimed subordinate staff. 
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 101(a)(32) of the Act, 8 U.S.C. § 110l(a)(32), states that "[t]he term 
1 In response to the RFE, however, the Petitioner stated that the Colombian company has "five full time employees, three 
sales persons and outsources two companies." Therefore, it is not clear from the record who are the 12 employees of the 
Colombian parent company relied on by the Beneficiary. 
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Matter of C- Inc 
profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, 
and teachers in elementary or secondary schools, colleges, academies, or seminaries." 
The Petitioner claims on appeal that the positions supervised by the Beneficiary are professional in 
nature. First, the Petitioner did not provide duties for the_ sales assistant position, and we are 
therefore unable to determine whether this position requires a baccalaureate degree. Next, the duties 
provided for the sales manager position do not support a finding that this position requires a 
baccalaureate degree, and the record does not support the Petitioner's claim that this employee has a 
bachelor's degree. 
Finally, a review of the position description provided for the operation manager calls into question 
whether this employee will be performing professional level duties. Even if the employee performs 
some duties associated with the marketing function of the organization, the Petitioner has not shown 
that the employee will primarily be performing professional level duties and not the customs and 
administrative work required for an export business. 
The Petitioner has not established, in the alternative, that the Beneficiary will be employed primarily 
as 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 for 
managing an "essential function" within the organization. See secti~n 101(a)(44)(A)(ii) of the Act. 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that a 
beneficiary will manage an essential function, a petitioner must clearly describe the duties to be 
performed in managing the essential function, i.e., identify the function with specificity, articulate 
the essential nature of the function, and establish the proportion of a beneficiary's daily duties 
dedicated to managing the essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, a 
petitioner's description of a beneficiary's daily duties must demonstrate that the beneficiary will 
manage the function rather than perform the duties related to the function. 
The Petitioner states on appeal that the Beneficiary, "primarily manages an essential function of the 
Company." Here, the Petitioner did not describe with any specificity what "essential function" 
1 
would be managed by the Beneficiary or provide a breakdown of the Beneficiary's job duties to 
support such a claim. Furthermore, the fact that the Beneficiary would have overall authority as the 
senior employee of the company does not establish that he would be employed as a function 
manager. While such authority is consistent with the statutory definition of managerial capacity, 
whether the Beneficiary is a "function" manager turns in part on whether the Petitioner has sustained 
its burden of proving that his duties are "primarily" managerial. The actual duties themselves reveal 
the true nature ofthe employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Here, for the reasons discussed above, the Petitioner has not established that the Beneficiary's actual 
duties would be primarily within a managerial capacity. As described above, the duties described 
are vague, and pffer little insight into the daily tasks the Beneficiary would perform. Further, the 
evidence as a whole does not support a conclusion that the Petitioner has sufficient staff to relieve 
the Beneficiary from significant involvement in the day-to-day operations of the business. For these 
9 
Matter of C- Inc 
reasons, the Petitioner has not established that the Beneficiary will be employed as a function 
manager. 
We note that a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa petition for classification as a 
,multinational manager or executive. See section 101(a)(44)(C) of the Act, 8 U.S.C. 
§ 1101(a)(44)(C). 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, or a "shell company" that 
does not conduct business in a regular and continuous manner. See, e.g., Family Inc., 469 F.3d 
1313; Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be 
especially relevant when USCIS notes discrepancies in the record and fails to believe that the facts 
asserted are true. See Systronics, 153 F. Supp. 2d at 15. 
Here, it is not the Petitioner's size, but rather the absence of staff to relieve the Beneficiary from 
performing non-qualifying duties, along with the noted inconsistencies and deficiencies regarding 
the position description, that are determining factors. It also remains unclear who performs the 
duties attributed to the vacant secretary, sales assistant, and customer service positions identified at 
the time of filing, or who is responsible for the purchasing functions attributed to the "purchasing 
department" which is referenced in the record but has not been shown to exist within the 
organization. Overall, given the inconsistencies and omissions, it is difficult to determine how work 
is actually distributed among the Petitioner's four employees and we cannot conclude that the 
Beneficiary's three subordinates would relieve him from significant involvement in the non­
managerial activities of the company on a day-to-day basis. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary 
will be employed in a managerial capacity under the extended petition. 
III. CONCLUSION 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 
2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC- Inc, ID# 12608 (AAO Oct. 16, 2016) 
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