dismissed L-1A Case: Website Design

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-U.S. INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 30, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which designs wcbsites for personal trainers, seeks to continue the Beneficiary's 
temporary employment as its managing director under the L-IA nonimmigrant classification for 
intracompany transferees. Immigration and Nationality Act (the Act) section I 01 (a)(IS)(L), 8 U.S.C. 
§ 1101(a)(l5)(L). The L-lA classification allows a corporation or other legal entity (including its 
atliliatc 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 approved the petition, but later revoked the approval, 
concluding that the record did not establish, as required, that the Petitioner will employ the 
Beneficiary in the United States in a managerial capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director erred by disregarding record evidence and binding policy guidance. 
In the revocation notice, the Director noted that a site visit to the work address claimed on the 
petition form did not yield any evidence that the petitioning company operated at that site, or that the 
Beneficiary worked at the address claimed. The Petitioner asserts that no site visit occurred "in 
2017." (The site visit took place in 2015.) The Petitioner has now documented its business activity, 
and asserted that the Beneficiary and its other employees work from home. The record establishes 
that the Petitioner is doing business, but the Petitioner has not overcome the Director's concerns 
regarding the nature of the Beneficiary's work and the availability of suHicient stalling to warrant a 
managerial position. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility tor 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," tor one continuous year within three years preceding the beneficiary's application lor 
admission into the United States. Section 10l(a)(l5)(L) of the Act.. In addition, the beneficiary 
tV!auer of P- U.S. Inc. 
must seck to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or aftiliate thereof in a managerial or executive capacity. !d. 
II. 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 under the extended petition. 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's position qualities as 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 
IOI(a)(44)(A) of the Act. 
When examining the managerial capacity of a given beneficiary, we wi!I 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 arc in a managerial or 
executive capacity. See 8 C.F.R. § 2l4.2(1)(3)(ii). Beyond the required description of the 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 ti·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's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Duties 
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 
I 533 (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. USCJS, 469 F.3d 1313, 
I 316 (9th Cir. 2006): Champion World, 940 F.2d I 533. 
The Petitioner stated that it sets up websites for personal trainers, in order to provide for them "a 
streamlined system for training and support and a way to manage their business efficiently and 
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Mauer of P-US. Inc. 
profitabl y." The Petitioner also provides educ ationa l and training material s, such as videos, licen sed 
from the 
The Petiti oner listed the Benefi ciary's " Managerial Respo nsibiliti es," the chief ones being " Lead and 
ove rsee Business Develo pmen t act ivities prospecting, phone call s, mee tings, trade shows to increase 
busine ss growth" (44% of his time) and "Ove rsee and direct day -to-da y activities o f Sales, 
Marketin g and Customer Services Manager" ( 18%): The Petiti oner also stated that the Bei1eficiary 
oversees and directs other tasks s uch as "budg et ana lys is," "acti vities rega rding financial tracking 
syste m," and "ac tivities of Marke ting organ ization 
In the revocatio n notice, the D irector concluded that the Benefi ciary " is primarily ass isting w ith the 
day to day non-super visor y duties of the busi ness. " The Dire ctor ~ased this fin ding primari ly o n the 
lack of subordina te stafT to relieve the Beneficiar y of those dutie s, as we will discuss below. 
On appeal , the Petitioner assert s that the Direct or misc haracteri zed the Beneficiary 's dutie s, and that 
all of those duti es are managerial rather than administ rative. The recor d, however, does not establ ish 
the accurac y of the duties as listed. One of the Beneficiary's state d respons ibilities is to "[o]versee 
product rebui ld and Content Manager for prod uct rebuild ," but the Petitione r does not empl oy a 
content manager. There are references to hirin g and training .. new employees, but the Petitio ner does 
not appear t o have hired any new employees througho ut the time the Beneficia ry has worked for the 
company in the United Stat es . There are sever al tasks that the Benefici ary is said to "ove rsee," but 
the record does not show who act ually perform s those t?sk s. The Petitioner also clai ms that the 
Benefici ary ove rsees " Head of Department meeting s," but the Beneficia ry is one of only nvo 
empl oyees and the Petitione r has no depa rtm en ts or department head s. 
As noted above, the Petition er also claimed that the Beneficiary wi ll "[o]verse and direct acti vities of 
Marketin g organ ization The license agreeme nt between the Petiti oner's 
foreig n parent company and the Institute does not give the Benefici ary the authority to 
"[o ]versee and direct" the Inst itut e's activities, nor does it obligate the Instit ute to act as the 
Petitione r's "Marketing organization." Rath er, the agreement perm its the parent company, as "an 
indep endent contractor ," " to use mat erial and licensed intell ect ual property in its internet 
business activ ities." 
The rec ord conta ins printouts of draft email messages in which the Institut e endorses the Petitione r' s 
produ cts, but the Petitioner sen t these dratl s to the Institute, ind icati ng t hat the Peti tione r, not the 
Institute, drafted the messages. Even if the Beneficiar y did have some degree of author ity over the 
the Peti tioner has not shown that the Institute has a qualifying relationship with 
the Peti tio ner as a parent, branch , affiliate , or subsidiary. 
The Beneficiary's chief activity , as describ ed, is to "[l]ead and ove rsee Busin ess Development 
activiti es prospec ting, phon e ca lls, meeting s, trade shows to increase business growth." The 
Petition er protests the Director's stat ement that that the Beneficiar y s pends 40% of his tim e on this 
function , rather than the 44% claimed in the job descripti on. The Director did slightl y unde rstate the 
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Maller of P-US. Inc. 
claimed percentage of time, but this error did not result in the revocation of the petition. More 
importantly, the Petitioner did not show that "prospecting [and] phone calls" are the tasks of a 
manager rather than a sales representative. 
If it is the Petitioner's position that the Beneficiary did not make phone calls, but rather supervised a 
subordinate who did, this would still make the Beneficiary a supervisor rather than a manager. 
Furthermore, the Beneficiary's authority over his only subordinate is covered elsewhere in the job 
description, so this element of the job description is/edundant if it simply attests to the Beneficiary's 
authority over a sales worker. 
The Petitioner has not established that the list of job duties accurately reflects the Beneficiary's 
responsibilities at the time of filing, or that the tasks he actually performs arc primarily those of a 
manager. 
B. Stafting 
If stat1ing levels are used as a I~Ictor in determining whether an individual is acting in a managerial 
or executive capacity, USC IS 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 101(a)(44)(C) 
of the Act. 
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. In this instance, the 
Petitioner claims that the Beneficiary qualifies as a personnel manager. Personnel managers arc 
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)(l3)(4). !fa 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 lire those employees, or recommend those actions, and take other 
personnel actions. Sections 10 I (a)(44)(A)(ii)-(iii) of the Act; 8 C.F.R. §§ 214.2(1)( 1 )(ii)(B)(2)-(J). 
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 tield of 
endeavor. q: 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 I 01 (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 seminaries." 
On the petition form, the Petitioner indicated that it had two employees in the United States, and 
"intends to add U.S. workers to its staff to serve in sales, marketing, and customer service 
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Ma/ier of' P-US. Inc. 
capacities." The Petitioner must establish eligibility at the time of filing. See 8 C.F.R. § 103.2(b)(l). 
Plans to fill positions in the future cannot meet this requirement, and unsta!Ted positions cannot 
establish that the Beneficiary qualifies as a manager or executive. 
Apart fi·mn the Beneficiary, the Petitioner's only U.S. employee at the time of tiling was the sales, 
marketing, and customer support manager. That individual's highest claimed academic credential is 
a high school diploma, and therefore he is not a professional as the statute and regulations 
contemplate that term. Regarding the Beneficiary's only subordinate, the Petitioner stated: 
Through his professional marketing staff, [he] oversees market research analysis 
activities, identif1ies] key target markets, and review[s] the development of 
comprehensive national and international marketing strategies. Through his 
professional marketing staff, [he] also oversees the development of marketing and 
sales materials for various media outlets for [the Petitioner's] extensive line of 
products and services .... 
Through his stati he reviews and manages the resolution of customer's long-standing 
or complex problems passed on by the customer service assistants .... 
[The] Sales, Marketing and Customer Services Manager ... IS responsible for 
managing the day to day activities 
The job description indicated that the "professional staff' consisted of "5-6 IT [(information 
technology)] professionals," "1-2 Marketing professionals," "2-3 Technical Sales Stafi" and "1-2 
Customer Service Staff'." The Petitioner. however, had not tilled any of those positions at the time 
of filing. Rather. the IT professionals "are to be employed in the next year." while the other 
employees are "to be hired over the next 5 years." The Petitioner did not explain who performed 
marketing, sales, and customer service functions while those positions remained vacant. 
With respect to IT work, the Petitioner stated that the sales, marketing, and customer support 
manager "manage[ s] at least 2 IT professionals" contracted fi·om an overseas provider. The 
Petitioner submitted copies of several invoices from that contractor for web design services, all 
dating from 2012, more than two years before the petition's December 2014 tiling date. The 
Petitioner documented wire transfers from its parent company in 2014, marked "IT SYSTEM 
BUILD," but these transfers are generally in much smaller amounts than the amounts on the 2012 
invoices, consistent with a lower level of activity. 
In response to the notice of intent to revoke in 2017, the Petitioner submitted tax and payroll records 
showing that the Petitioner did not hire any additional personnel in 2015 or 2016. The Petitioner 
continued to assert its intention to hire more employees in the future. An organizational chart named 
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Maller of P-US. Inc. 
three software developers, but the Petitioner confirms on appeal that these individuals are 
contractors. 
In the revocation notice, the Director noted that the Petitioner still had only two employees. The 
Director advised that future hiring plans cannot establish eligibility at the time of tiling. The 
Director concluded that the Beneficiary appears to be "a first-line supervisor of non-professional 
employees." 
On appeal, the Petitioner asserts that the Director erroneously concluded that the Beneliciary "is 
performing non-supervisory duties." Supervisory duties are not managerial if the employees 
supervised are not professionals. In this instance, the Beneficiary has only one subordinate 
employee, whose high school-level education precludes a linding that he qualilies as a professional. 
The Petitioner asserts that we did noi adhere an adopted decision, }vfaller of Z-A-. Inc., Adopted 
Decision 2016-02 I (AAO Apr. 14, 20 16), which listed several factors that we must consider when 
weighing the totality of the record. The Petitioner listed most of the factors from Z-A-, but omitted 
"staffing levels." The omission is neither inadvertent (the Petitioner marked the edit point with an 
ellipsis) nor insignilicant, because stafling is a central issue in this proceeding. The issue in this case 
is not the scope of the Beneficiary's authority, but the availability of other-workers to perform the 
non-managerial li.mctions of the company so that the Beneficiary does not have to perlonn them 
himself. 
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 lor classification as a 
multinational manager or executive. See section I 0 l (a)( 44)(e) of the Act. However, it is 
appropriate for users to consider the size of the petitioning company in conjunction with other 
relevant factors, such as the absence of employees who would perlorm the non-managerial 
operations of the company. See. e.g .. Family Inc .. 469 FJd 1313; Systronics Corp. v. INS, 153 F. 
Supp. 2d 7, 15 (D.D.e. 2001).' The size of a company may be especially relevant when users notes 
discrepancies in the record and fails to believe that the facts asserted are true. See Systronics, 153 F. 
Supp. 2d at 15. 
The Petitioner states that the sales, marketing, and customer service manager "oversees the day to 
day activities of his professional stall" specifically the contracted so it ware developers (who work in 
the Philippines). The service agreement in effect in late 2014 does not establish that anyone at the 
petitioning company had managerial authority over the contractor's employees. Rather, under 
paragraph 15 of that agreement the contractor "has the sole right to control and direct the means, 
manner, and method by which the services required by this Agreement will be performed." The 
Petitioner, therefore, has not established that the Beneliciary's only subordinate is a professionaL a 
manager, or a supervisor. 
lvfaller of P- U.S. Inc. 
The Petitioner has documented that contractors handle information technology functions, but has not 
shown that anyone other than the Beneficiary and his subordinate performs the non-managerial tasks 
relating to sales, marketing, finance, and so on. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
it will employ the Beneficiary in a managerial capacity under the extended petition. 
Ill. CONCLUSION 
The Petitioner did not establish that the Beneficiary's position qualilies as a managerial capacity. 
ORDER: The appeal is dismissed. 
Cite as Maller o[P-US Inc., ID# 1211082 (AAO Apr. 30, 2018) 
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