dismissed L-1A Case: Wholesale Trade

U.S. Citizenship 
and Immigration 
Services 
MATTER OF I-M-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 25,2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a candle wholesaler, seeks to employ the Beneficiary temporarily as its president 
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)(l5)(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 of the California Service Center denied the petition concluding that the Petitioner did 
not establish, as required, that the Beneficiary would be employed in a managerial capacity.' 
On appeal, the Petitioner asserts that the Director's decision was arbitrary and did not consider the 
reasonable needs ofthe U.S. entity. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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, or in a position involving 
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 services 
to the same employer or a subsidiary or affiliate thereof in a managerial or executive capacity. !d. 
An L-1 A classification petition must be accompanied by evidence establishing that: the beneficiary 
has been employed abroad in a position that was managerial, executive, or involved specialized 
knowledge for at least one continuous year in the three years preceding the filing of the petition; the 
beneficiary is coming to work in the United States in a managerial or executive capacity for the same 
employer or a subsidiary or affiliate of the foreign employer; and, the beneficiary's prior education, 
1 
The Petitioner states that the Beneficiary will be employed in a managerial capacity and does not claim that the offered 
position meets the requirements of an executive capacity. 
Matter of 1-M-S- Inc. 
training and employment qualifies 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 Director found that the Petitioner did not establish that the Beneficiary would be employed in 
the United States in a managerial capacity. 
The term "managerial capacity" is defined 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. 
Section 101(a)(44)(A) of the Act. 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." !d. 
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 over(;lll purpose and stage of development of 
the organization. See section 101(a)(44)(C) of the Act. 
A. Duties 
When examining the managerial capacity of a given beneficiary, we will look first 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). 
2 
Matter of 1-M-S- Inc. 
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 15 3 3. 
The Petitioner filed the Form I-129, Petition for a Nonimmigrant Worker, claiming four employees and a 
net income of approximately $38,000. In a supporting cover letter, the Petitioner stated that 55% of the 
Beneficiary's time would be spent hiring, firing, and overseeing the general manager and overseeing the 
company's "overall performances ... to ensure the completion of the annual business plans and the 
realization ofthe long[-]term development strategies." The Petitioner did not elaborate on the specific 
tasks and actions involved in overseeing the company's performance or discuss how often the 
Beneficiary would be required to make hiring and firing decisions with respect to the general manager's 
position. Although the Petitioner stated that the Beneficiary's proposed position would also involve 
mapping out its long-term goals, adjusting its organizational structure and management team, and 
reviewing the annual business and budget plans, these broadly stated responsibilities represent 
intermittent functions that the Beneficiary would address on an as-needed basis rather than specific daily 
tasks that would be paft of his daily routine. The job description in the initial cover letter was vague and 
lacked sufficient information as to the specific functions the Beneficiary would actually perform on a 
daily basis. 
In response to a notice of intent to deny in which the Director requested additional evidence to 
establish that the Beneficiary would be employed in a managerial or executive capacity, the 
Petitioner stated that the Beneficiary would be employed in a managerial capacity, which would 
require supervising the company's general manager. The Petitioner claimed that the Beneficiary will 
be "responsible for the general management of the entire company" and expanding the company by 
forging "external relationships" with businesses in Asian countries. The Petitioner reiterated the 
Beneficiary's original job description and stated that the Beneficiary's responsibility for hiring, 
firing, and overseeing the work of his subordinate general manager as well as making other staffing 
changes, adjusting the Petitioner's product line, and modifying the Petitioner's business and budget 
plans are all characteristic of someone who would be employed in a managerial capacity. The 
Petitioner claimed that at least 95% of the Beneficiary's time would be spent performing tasks of a 
managerial nature. 
We note that other than clarifying that it intends to employ the Beneficiary in a managerial capacity 
rather than an executive capacity, the Petitioner's supplemental statement did not further explain the 
Beneficiary's specific job duties or the nature of those duties. Rather, the Petitioner relied on broad 
statements that focused on the Beneficiary's discretionary authority to establish that the Beneficiary 
be employed in a managerial capacity. We note, however, that reciting the Beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the actual duties themselves 
reveal the true nature of the employment. 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). 
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Matter of 1-M-S- Inc. 
In addition, the new statement included vague references to the Beneficiary's authority to adjust the 
Petitioner's staffing structure and "management team" without providing information as to who 
would comprise the "management team." In light of the Petitioner's explanation that the sales and 
marketing managers "are first-line employees" who carry out the Petitioner's operational tasks, 
despite their managerial position titles, it is unclear who, other than the general manager, would 
comprise a "management team." This ambiguous reference to a team that does not appear to have 
existed at the time this petition was filed detracts from the claim that the Beneficiary would 
primarily perform tasks that are of a managerial nature. 
In denying the petition, the Director determined that the evidence does not establish that the 
Beneficiary would primarily perform managerial duties that involve overseeing managerial, 
supervisory, or professional employees, given that the Beneficiary only supervises one supervisory 
employee and has no other subordinates. 
While it argues that the Director's conclusion is arbitrary, the Petitioner does not expand on the 
specific daily tasks the Beneficiary would perform to establish that the primary portion of his time 
would be devoted to managerial functions. The Petitioner also points out that the Director's analysis 
focused on the second prong of the definition of managerial capacity, which requires the Petitioner 
to establish that the Beneficiary supervises and controls the work of other supervisory, professional, 
or managerial employees. Section 101(a)(44)(A)(ii) of the Act. The Petitioner interprets the 
Director's silence with respect to the three remaining prongs as an indication that it provided 
sufficient evidence to meet those prongs. See sections 1 Ol(a)(44)(A)(i), (iii), and (iv) of the Act. 
We disagree with the Petitioner's assessment. 
Despite providing an organizational chart that depicts the Beneficiary at the top of the company's 
organizational hierarchy, the Petitioner cannot establish that the Beneficiary would primarily manage 
the organization, have hiring and firing authority over its personnel, and possess discretionary 
authority over its daily operations without providing a detailed job description that delineates the 
·Beneficiary's daily tasks. Without this detailed description, the Petitioner has not met its burden to 
establish that the Beneficiary will primarily perform higher-level duties consistent with the statutory 
definition of managerial capacity. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily managerial in nature; otherwise meeting the statutory definition 
would simply be a matter of reiterating the regulations. Fe din Bros. Co., 724 F. Supp. at 1108. As 
indicated above, the Petitioner provided an overly general job description that lacked the necessary 
degree of detail about the actual tasks the Beneficiary would perform on a daily basis within the 
context of a candle sales operation. In light of this deficiency, we find that the Petitioner did not 
establish that the Beneficiary would primarily perform tasks of a managerial nature. 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the evidence when 
examining a beneficiary's claimed managerial capacity, including the company's organizational 
structure, the duties of a beneficiary's subordinate employees, the presence of other employees to 
4 
Matter of 1-M-S- Inc. 
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 section 1 Ol(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. 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 101(a)(44)(A)(iv) of the Act. As indicated above, 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. 
§ 214.2(l)(l)(ii)(B)(3). 
In the present matter, the Petitioner claims that it would employ the Beneficiary in a managerial 
capacity where he would manage a single employee - the general manager - with a total support 
staff of four employees. It is unclear how the Beneficiary would allocate his time primarily to 
managerial tasks while having one employee as his only subordinate. Although the Petitioner points 
out that its operation "is still in the developing stage" and contends that it currently has no need to 
hire more than one supervisory position for the Beneficiary to manage, the Petitioner is not a new 
office and thus must establish its ability to support the Beneficiary in a primarily managerial position 
at the time of filing.2 The record shows that 'the Petitioner was established in 2000 and had been 
under new majority ownership for over two years when it filed the petition. It is unclear why the 
Petitioner maintains that it is still at an early phase in its development. 
Although the Petitioner claims that it plans to open another sales office and hire additional 
employees once this petition is approved, the Petitioner must establish that all eligibility 
requirements for the immigration benefit have been satisfied from the time of the filing and 
continuing through adjudication. 8 C.F .R. § 103 .2(b )(I). In other words, eligibility in this matter 
cannot be based on projected staff increases, but rather must be determined based on the four-person 
staff that existed when the petition was filed. Therefore, while we consider the Petitioner's 
reasonable needs, which may not require multiple managerial or supervisory employees based on the 
organization's stage of development, the record lacks evidence to show that such needs would 
plausibly be met by the services of the Beneficiary as a personnel manager whose subordinate staff 
is comprised of a single employee. 
Further, the Petitioner has not established that it had sufficient staff to relieve the Beneficiary from 
having to negotiate with vendors to source products and be directly involved in the logistics 
components of the operation, including securing proper channels and methods for shipping and 
receiving of merchandise. These, and possibly other, operational tasks are likely critical to the 
2 The regulation at 8 C.F.R. § 214.2(l)(J)(ii)(F) defines a "new office'' as an organization that has been doing business in 
the United States for Jess than one year. 
5 
Matter of 1-M-S- Inc. 
success of the Petitioner's sales-based organization, yet the Petitioner has not provided evidence to 
establish how it plans to relieve the Beneficiary from having to be directly involved in these non­
managerial functions. We note that the Petitioner's reasonable needs will not supersede the 
requirement that the Beneficiary must be "primarily" employed in a managerial capacity such that 
the non-managerial tasks would only be incidental to the proposed position. See section 
10l(a)(44)(A) of the Act. 
In sum, although the Beneficiary may have the authority to hire and fire employees and take other 
personnel actions as a result of his top-level placement within the Petitioner's organizational 
hierarchy, the record does not establish that the Petitioner had the management structure in place at 
the time of filing to support the Beneficiary as a personnel manager whose time would be primarily 
spent overseeing the work of supervisory, professional, or managerial employees and performing 
other managerial functions. 
Further, the Petitioner's statements on appeal urging us to focus on its reasonable needs rather than 
the size of its support staff are not persuasive, as the Petitioner did not establish that it had sufficient 
support personnel at the time of filing to relieve the Beneficiary from allocating his time primarily to 
performing the organization's non-managerial functions. As noted above, the Petitioner has not 
provided information to show who would perform the operational duties previously cited. Without 
this critical evidence, we cannot exclude the possibility that the Beneficiary himself is disectly 
involved in primarily operational tasks based on the Petitioner's current needs. 
Alternatively, the term "function manager" applies generally when a beneficiary does not primarily 
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 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, or more specifically, identify the function with specificity, 
articulate the essential nature of the function, and establish the proportion of a beneficiary's daily 
duties attributed to managing the•essential function. See 8 C.F.R. § 214.2(l)(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 duties related to the function. See Matter (~l Z-A-. Inc., 
Adopted Decision 2016-02 (AAO Apr. 14, 2016): Here, the Petitioner has not claimed or provided 
evidence to demonstrate that the Beneficiary would manage an essential function. Therefore, it has not 
established that the Beneficiary would assume the role of a function manager. 
In light of the various deficiencies discussed above, we find that the Petitioner has not established that it 
would employ the Beneficiary in a managerial capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of I-M-S- Inc., ID# 525557 (AAO Aug. 25, 20 17)