dismissed L-1A Case: Wholesale Trade

MATTER OF A-T-L- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 16, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a wholesale and retail trading company, seeks to temporarily employ the Beneficiary as 
the president and director of its new office 1 under the L-1 A nonimmigrant classification for 
intracompany transferees. Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. 
§ 1101(a)(l5)(L). The L-IA 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 record did not 
establish, as required, that the Petitioner had secured sufficient physical premises to house its 
proposed new office. Further, the [?irector determined that the Petitioner did not establish that the 
Beneficiary would act in a managerial or executive capacity within one year of an approval of the 
petition. 
On appeal, the Petitioner states that it has secured a warehouse for the sale of its products and asserts 
that this is sufficient for it to commence business within the first year. In addition, the Petitioner 
asserts that the Beneficiary will act in a managerial capacity and contends that submitted letters 
demonstrate that he would have the ability to hire and fire professional subordinates within the first 
year. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification in a petition involving a new 
office, 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(l)(3)(v)(B). In addition, the beneficiary must 
1 The tenn "new office" refers to an organization which has been doing business in the United States for less than one 
year. 8 C.F.R. § 214.2(1Xl)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
Maller of A-T-L- Inc. 
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. 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
secured sufficient physical premises to house its operation and disclose the proposed nature and 
scope of the entity, its organizational structure, its financial goals, and the size of the U.S. 
investment. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
IL U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
We will first analyze whether the Petitioner established that it would employ the Beneficiary in a 
managerial capacity within one year of the petition's approval. The Petitioner does not claim that 
the Beneficiary would be employed in an executive capacity. Therefore, we restrict our analysis to 
whether the Beneficiary would 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. 
In order to determine whether the Petitioner established that its new office will support a managerial 
position within one year, we will review the Beneficiary's proposed job duties, along with the 
Petitioner's business and hiring plans and evidence that the business will grow sufficiently to support 
the Beneficiary in the intended managerial capacity. The totality of the evidence must be considered 
in analyzing whether the proposed managerial position is plausible, considering a petitioner's 
anticipated staffing levels and stage of development within a one-year period. See 8 C.F.R. 
§ 214.2(1)(3)(v)(C). 
A. Duties 
In a submitted business plan, the Petitioner stated that it would "provide high quality and the lowest 
price for Hydraulic Cranes and Lifts." It also noted that it planned to sell "clothes, furniture and 
arts." The Petitioner submitted photographs of a warehouse space reflecting a sign indicating that 
the company was engaged in the "import, export, wholesale and retail of: used clothes [ and] shoes, 
used hang bags, new furniture [and] arts." Further, the provided photographs showed used clothes 
and shoes in bundles, furniture, and framed posters stored in the warehouse. 
In response to the Director's request for evidence (RFE), the Petitioner listed the following duties for 
the Beneficiary in his proposed position of president and director: 
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Malter of A-T-L- Inc. 
• Facility Set Up: Finding a strategic location in California and -setting up 
distribution, sorting & grading, storage and sales departments. - 20% of his time 
• Investment planning: Formulating and implementing investment plans from the 
startup of the company to the level of sales. -20% of his time. 
• Business development planning: Formulating and implementing the Sales & 
Marketing strategies such as designing dealer policies, pricing structure etc. 
Prepare and implement comprehensive business plans to facilitate achievement by 
planning cost-effective operations and marketing development activities. - 20% 
of his time. 
• Production Planning: Formulating and implementing the flow of production, 
selection of production machinery. Sourcing the supp~iers of raw material. -
20% of his time. 
• Hiring New Employees: Hiring a dedicated team of American employees in all 
the departments. - 20% of his time. 
In denying the petition, the Director concluded that the Beneficiary's duties were insufficient to 
demonstrate the managerial tasks he would perform on daily a daily basis. On appeal, the Petitioner 
provides some of the following additional duties for the Beneficiary: 
• establish the company's "goals and strategies," 
• oversee "budgets and ensures resources are properly allocated," 
• oversee "all other executives and staff," including performance, schedules, and 
trainings, 
•. communicate with the "board of directors and other executives to determine if 
company is in accordance with goals and policies and the business plan," 
• "oversee budgets and prepare research," 
• "hiring first line employees, supervisors, executives, or managers," 
• "encourage business investment," 
• "promote economic development," 
• "implement the organization's guidelines," 
• "preside over quality control," 
• "oversee the investment of funds" and "execute capital-raising strategies," 
• "provide visionary and strategic leadership," 
• "ensure members of the Board of Directors have the information necessary to 
perform their fiduciary duties," 
• "develop and maintain relationships with other associations, industry [sic], and 
government officials," and 
• "provide adequate and timely information to the Board." 
The proposed U.S. duties submitted for the Beneficiary are overly vague and _they do not effectively 
convey the Beneficiary's actual day-to-day managerial tasks. The Beneficiary's job description 
includes several generic duties that could apply to any manager acting in any business or industry; 
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Malter of A-T-L- Inc. 
such duties do not provide insight into the actual nature of his role. The Petitioner provided few 
specifics related to how the Beneficiary's day-to-day duties fit within the company's first year 
business plans. For instance, the Petitioner did not specify the actions the Beneficiary would take 
during its first year of operation to demonstrate that the business would develop as necessary to 
support him in a managerial capacity within one year. In fact, the Beneficiary's duty description 
includes few references to the company's intended business, the sale of cranes and lifts, used clothes 
and shoes, furniture, and art. 
The Petitioner submits little detail regarding the investment plans the Beneficiary will implement, 
sales and marketing strategies he will formulate, dealer policies he will design, goals and strategies 
he will establish, and budgets he will set. Likewise, the Petitioner does not articulate "business 
investment" the Beneficiary would encourage, economic development he would promote, quality 
control he will preside over, organizational guidelines he will implement, or relationships with 
"associations, industry, and government officials" he would maintain. The record requires more 
detail as to the Beneficiary's specific tasks to assess whether he would primarily act in a managerial 
capacity within one year. · Specifics are clearly an important indication of whether a beneficiary's 
duties are primarily 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). 
Moreover, some of the Beneficiary's duties appear to bear little relation to its proposed business 
plans during the first year leaving question as to their credibility. For instance, the Petitioner states 
that the Beneficiary would be tasked with setting up a "sales department"; however, its hiring plans 
indicate that it projects to hire only one employee devoted to marketing and sales during the first 
year. Further, the Beneficiary's duties mention him "implementing the flow of production," 
managing the "selection of production machinery," sourcing "raw materials," and presiding over 
"quality control." However, the Petitioner submits evidence indicating that it plans to sell cranes 
and lifts, used clothes and shoes, furniture, and art that have already been produced or used by other 
individuals or entities. The evidence indicates that these items would be stored at the warehouse 
rented by the Petitioner and shipped and sold from this location. There is little indication that this 
warehouse would be a production facility with machinery, that it would be procuring raw materials 
for production, or that a quality control system related to production would be required. 
In addition, the Beneficiary's duty description on appeal discusses his communication and 
collaboration with a board of directors, but there is little evidence to indicate that such a board exists 
or would exist during the first year. The duties also mention the Beneficiary raising capital and 
dealing with mergers and acquisitions, but the Petitioner's business plans do not detail these 
activities during the first year. In sum, these discrepancies leave question as to the credibility of the 
Beneficiary's asserted duties and whether they truly reflect his actual day-to-day managerial tasks 
during the first year. 
The fact that the Beneficiary would manage the business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial capacity within the meaning of section 
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Maller of A-T-l- Inc. 
101(a)(44) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" managerial in nature. Section 101 (A)( 44)(A) of the Act. Even though the 
Beneficiary would exercise discretion over the Petitioner's day-to-day operations and possess the 
requisite level of authority with respect to discretionary decision-making, these elements are not 
sufficient to establish that the actual duties the Beneficiary would perform within one year of the 
petition's approval would be primarily managerial in nature. The actual duties themselves reveal the 
true nature of the employment. Fedin Bros. Co., Ltd., 724 F. Supp. 1103, 1108. Here, the Petitioner 
provided a vague job description that does not adequately convey the Beneficiary's actual proposed 
day-to-day tasks or establish that he would devote his time primarily to managerial duties within one 
year. 
B. Business Plan and Projected Staffing 
In the case of a new office petition, we review the petitioner's business and hiring plans and 
evidence that the business will grow sufficiently to support a beneficiary in the intended managerial 
capacity. A petitioner has the burden to establish that it would realistically develop to the point 
where it would require the beneficiary to perform duties that are primarily managerial in nature 
within one year of the petition's approval. Accordingly, we consider the totality of the evidence in 
analyzing whether the proposed managerial position is plausible based on a petitioner's anticipated 
staffing levels and stage of development within a one-year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
The Petitioner submitted a projected organizational chart reflecting that the Beneficiary would 
oversee a "director finance," a director, and a marketing and sales employee. The chart further 
indicated that the director would supervise an installation employee, a separation employee, and a 
grading and storage employee. 
The Petitioner has not submitted sufficient evidence to establish that the Beneficiary would act as a 
personnel manager during the first year. The statutory definition of "managerial capacity" allows for 
both "personnel managers" and "function managers." See section 10l(a)(44)(A)(i) and (ii) of the 
Act. We note that the Petitioner does not contend that the Beneficiary would act as a function 
manager within one year; as such, we will only analyze whether he would act as a personnel 
manager. 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 10l(a)(44)(A) of the Act. If a beneficiary directly 
supervises other employees, the beneficiary must also have the authority to hire and fire those 
employees, or recommend those actions, and take other personnel actions. 8 C.F.R. 
§ 214.2(1)(1 )(ii)(B)(J). 
In· the request for evidence (RFE), the· Director requested that the Petitioner submit a more detailed 
organizational chart listing all its proposed positions, the duties of these positions, and their expected 
educational levels. The Petitioner largely ignored this request, but it did identify three individuals by 
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Matter of A-T-L- Inc. 
name whom it projected would fill the positions directly subordinate to the Beneficiary. In denying 
the petition, the Director pointed to this lack of requested evidence. 
On appeal, the Petitioner submits no information on the duties and expected education levels of the 
Beneficiary's proposed subordinates during the first year. For this reason, it has not established that 
the Beneficiary would oversee the "work of other supervisory, professional, or managerial 
employees" within one year as necessary to qualify him as a personnel manager. Section 
10l(a)(44)(A) of the Act; 8 C.F.R. § 214.2(1)(3)(v)(C). For instance, the Petitioner's projected 
organizational chart reflects that the Beneficiary's sole subordinate manager, the director, would 
oversee an employee devoted to "installation" and another focused on "grading and storage." 
However, without a clear description of duties of the employees listed in the projected organizational 
chart, it is not clear what installation and grading the Petitioner refers to in these proposed position 
titles. Further, given this ambiguity, it is not clear that the Beneficiary's lone asserted managerial 
subordinate, the director, would act in a supervisory capacity within one year. 
The_ Petitioner also appears to indicate on appeal that the Beneficiary would oversee professional 
subordinates; however, we cannot determine that the positions subordinate to him would likely be 
professional without a detailed explanation of the duties and educational requirements of these 
positions and a clear indication as to why they would require a bachelor's degree.2 
The Petitioner also submitted vague and inconsistent business plans and milestones that are 
insutlicient to demonstrate that it would likely develop adequately during the first year to support the 
Beneficiary in a managerial capacity. In the RFE, the Director requested that the Petitioner submit a 
business plan including timetables for proposed actions to launch the business during the first year. 
However, the stated actions items submitted by the Petitioner were generic and offered little insight 
into how it would successfully launch its proposed business during the first year. For instance, the 
Petitioner stated that it would "implement the marketing strategy" within two months, set "up a 
dealership network in CA, AZ, NM, [and] TX within 4 months," and set up "company owned sales 
& storage facilities in AZ, NM, & TX." However, it did not describe the referenced marketing 
strategy, what actions it would take to launch a dealership network in four states in only four 
months, what it would specifically sell in this proposed network, or what actions it would take to set 
up storage facilities in three different States. 
Further, it also provided other action items vaguely titled "purchase the inventory," "set up the 
office," and "advertising plan." It also appears that a number of items on the milestone list had 
already been completed, such as "setting up the entity in California," searching for a "suitable 
2 In evaluating whether a 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 U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation"). Section IOl(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." 
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Malter of A-T-L- Inc. 
location for a warehouse and sales office," and leasing this space. In sum, the Petitioner did not 
submit sufficiently specific and credible business plans to demonstrate that it would develop 
sutliciently during the first year to support the Beneficiary in a managerial capacity. 
Further, the submitted business plan includes material discrepancies that leave question as to their 
credibility. For instance, the business plan included a chart titled "financial highlights by year" 
indicating that the company earned over $750,000 in revenue in 2016 and over $1 million in revenue 
in 2017; however, there is no indication that the Petitioner earned revenue prior to the date the 
petition was filed. 3 In addition, the same financial highlights table projected that the Petitioner 
would earn $1.3 million in 2018, the year generally coinciding with its proposed first year of 
operation, while a later "projected profit and loss" table indicated that it would earn over $1.87 
million in sales and revenue during that same year. It is also noteworthy that the Petitioner provides 
little support for how it would generate these levels of revenue during its first year. In sum, the 
Petitioner's conflicting statements as to its first year financial projections leave further question as to 
whether it would likely develop sufficiently during the first year to support the Beneficiary in a 
managerial capacity. 
The Petitioner has also not sufficiently established the size of the investment in the new office. See 
8 C.F .R. § 214.2(1)(3)(v)(C)(2). In the submitted business plan, the Petitioner stated that the "initial 
plan is to invest the money with the existing business, however if and when required we will go for 
bank loans or investment from the investors." The Petitioner did not clearly articulate the amount of 
required investment in the new venture or how investment would be allocated to successfully launch 
the business during the first year. On appeal, the Petitioner states that the Beneficiary's foreign 
employer invested $45,000 in the new venture and points to bank statements it asserts establishes 
this investment. We acknowledge that the Petitioner submitted bank statements from August 2017 
indicating that over $42,000 was wired into its U.S. account; however, these same records indicate 
that this amount was spent down to approximately $31,000 by October 2017. Most importantly, the 
Petitioner does not describe how these amounts would be used during the first year to successfully 
launch the business as necessary to support the Beneficiary in a managerial capacity. 
The Petitioner also submits evidence of the foreign employer's finances which leave doubt as to 
whether it would have.sufficient funds to support the new business. For instance, the most recent 
foreign employer audited financial statement from 2016 reflected that its revenue was "nil," that it 
paid only 3,496 Malaysian Ringgits (MR) in "wages & allowances," and that it lost over 73,000 
(MR) during that year. Therefore, without further supporting documentation as to the foreign 
employer's finances, the submitted documentation does not appear to support a conclusion that the 
foreign employer would be capable of supporting investment in the Petitioner. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would act in 
a managerial capacity within one year of an approval of the petition. 
3 We note that the petition-was filed on December 7, 2017. 
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Malter of A-T-L- Inc. 
III. SUFFICIENT PHYSICAL PREMISES 
The Director also denied the petition concluding the Petitioner did not establish that it had secured 
sufficient physical premises to commence doing business. 8 C.F.R. § 214.2(1)(3)(v)(A). In denying 
the petition on this ground, the Director pointed to photographs submitted by the Petitioner 
indicating that its warehouse location was still under construction and included no office equipment 
The Director concluded that this space did not appear sufficient to house the company's employees. 
On appeal, the Petitioner states that its warehouse space is sufficient to begin selling 'products and 
notes that office equipment is not required to demonstrate sufficient physical premises to commence 
doing business. 
Upon review, we concur with the Director that the Petitioner has not demonstrated that it secured 
sufficient physical premises to commence doing business. As noted by the Director, the Petitioner 
appears to have secured a warehouse in which it is storing used clothing and shoes and furniture 
which it plans to ship and sell. The space also appears to include a few tables for employees to use 
as work stations. However, as we have discussed, the Petitioner did not submit duty descriptions for 
the employees it projects it would hire during the first year. Therefore, without this evidence, we are 
not capable of determining whether the secured space is sufficient for the Petitioner's needs. For 
this reason, we' concur with the Director's conclusion that the Petitioner did not demonstrate that it 
had secured sufficient physical premises to commence doing business during the first year. 
IV. CONCLUSION 
The appeal will be dismissed because the record does not include sufficient evidence to establish that 
the Beneficiary would be employed in a managerial capacity within one year of the petition's 
approval and it does not demonstrate that the Petitioner secured sufficient physical premises to 
commence doing business. 
ORDER: The appeal is dismissed. 
Cite as Mauer of A-T-L- Inc., ID# 1699549 (AAO Oct. 16, 2018) 
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