dismissed L-1A Case: Wholesale Trade

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-S-P-USA, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 24, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a wholesale importer of ceramic kitchenware (manufactured by its foreign parent 
company) and exporter of live seafood, seeks to continue the Beneficiary's temporary employment as 
its manager under the L-1 A nonimmigrant classification for intracompany transferees. 1 Immigration and 
Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-lA 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 will employ the Beneficiary in the United States in a 
managerial or executive capacity. The Petitioner filed a motion to reopen. The Director granted that 
motion and again denied the petition for the same reason. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that it "has submitted 
sufficient detail and ample documentation" to establish eligibility for the benefit sought. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity for one continuous year within 
three years preceding the beneficiary's application for admission into the United States. 8 C.F.R. 
§ 214.2(1)(3)(v)(B). In addition, the beneficiary must seek to enter the United States temporarily to 
continue rendering his or her services to the same employer or a subsidiary or affiliate thereof in a 
managerial or executive capacity. Id. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
from May 15, 2017 to May 14, 2018. A "new office" is an organization that has been doing business in the United States 
through a parent , branch, affiliate , or subsidiary for less than one year. 8 C.F.R. § 214.2(l)(l)(ii)(F). The regulation at 
8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation one year within the date of approval of the petition to support 
an executive or managerial position. 
Matter of T-S-P-USA, LLC 
A petitioner seeking to extend an L-lA petition that involved a new office must submit a statement of 
the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 8 C.F.R. 
§ 214.2(1)(14)(ii). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that it will 
employ the Beneficiary in a managerial or executive capacity. Early submissions referred to the 
Beneficiary as an "executive manager" and a "managerial executive," but on appeal, the Petitioner 
clarifies that "the Beneficiary's role in the United States is Managerial. Therefore, the analysis should 
be limited to whether the Beneficiary would be employed in a primarily managerial capacity in the 
United States." As such, we need not discuss the separate requirements for an executive capacity 
assignment. 
"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 
10l(a)(44)(A) of the Act. 
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 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. 
When examining the managerial or executive capacity of a given beneficiary, we will 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 are in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of 
the job duties, we examine 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. 
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. 
2 
Matter of T-S-P-USA, LLC 
A. Duties 
The Petitioner stated that the Beneficiary divides his time as follows: 
• Manages the Organization (50% of his time) 
o Oversee the implementation of the annual business plan, investment plan and 
financing plan (10%) 
o Determine the most effective course of action needed to reach that goal by 
directing future leadership with his immediate subordinate managers by 
maintaining a positive culture (10%) 
o Meet daily and oversee with all levels of management in the organization to 
improve our customer service system by tracking and responding to complaints 
... (10%) 
o Approve or reject business plans and budgets, submitted by the Administration 
Manager and Marketing Manager that achieve business growth (sales and 
profit) and ensure innovative cost controls in all areas (10%) 
o Approve and oversee business restructuring or resource integration (10%) 
• Hire, Fire, Supervise and Control the Work of other Managerial Employees (30%) 
o Recruit, hire and fire the management of each department . . . . Oversee his 
immediate subordinates' hiring and firing of department staff (5%) 
o Provide performance appraisals, promote and transfer of employees ... (5%) 
o Supervision of all departments to accomplish employment goals to provide 
excellent customer service to reduce shipping delays (5%) 
o Oversee each department manager in the performance management and 
improvement systems (5%) 
o Oversee employment and compliance to regulatory concerns with department 
managers from situation [sic] and problems that arises [sic] with customers['] 
complaints ... (5%) 
o Approve policy development and documentation for exporting of products 
(3%) 
o Approve employee policy handbook for two (2) departments (2%) 
• Exercises Discretion Over the Day-to-Day Operations (20%) 
o Designate tasks and responsibilities to department managers ... (5%) 
o Meet and oversee with two (2) Department Managers to ensure all departments 
are working towards the same objectives and goals (5%) 
o Exercise sole discretion making power over the approval of the organizational 
structure and chain of command within the company by approving goals and 
budgets for the immediate managers to allow them to directly contact vendors 
and suppliers in the purchase oflive seafood and ceramic dinnerware (2%) 
o Oversee creative commercial strategies and plans ... (2%) 
o Assign work and granting authority to subordinate managers to ensure foll 
functionality of the premises (2%) 
o Approve recommendations for capital growth plans and oversee 
implementation of capital projects with Administration Manager; for purchase 
of an owner-occupied real property (2%) 
3 
Matter of T-S-P-USA, LLC 
o Oversee the output of each department manager to ensure each employee's 
performance meets those standards based on customer feedback to ensure 
compliance with the Marketing Manager (2%) 
Within each of the sub-categories, the Petitioner listed actions that the Beneficiary has taken or will 
take. Some of these actions entail approval or oversight of the work of subordinates whom the 
Petitioner did not always identify; others simply restate the duty (such as "Approved business plan" 
under the heading "Approve or reject business plans"). Other actions are overlapping or repetitive. 
For example, the Petitioner stated that the Beneficiary "Executed Employment Agreements to retain 
two (2) department managers," and, separately, that "[ a ]n Administration Manager and a Marketing 
Manager have been hired." The Petitioner did not explain the distinction. 
For some of the Beneficiary's stated responsibilities, the Petitioner did not adequately explain exactly 
what tasks the Beneficiary would perform. For instance, the Petitioner did not explain the meaning of 
"ensur[ing] compliance with the Marketing Manager." 
Asked to provide more details, the Petitioner submitted "a summary of the beneficiary's typical 
managerial duties." This summary, however, included several general statements such as 
"Contributing recommendations to the corporate strategic plan by synthesizing creativity and 
operations information" and "Oversight of creativity research efforts for the determination of 
consumer needs and preferences for current as well as future services." Such statements shed little 
light on the actual nature of the Beneficiary's specific duties. 
The Director denied the petition, stating that the Petitioner had not established the Beneficiary's 
managerial capacity. On motion, the Petitioner submitted examples of the Beneficiary's work product, 
such as: 
• "Executive Team Meeting Minutes," assigning to the Beneficiary's immediate subordinates 
tasks such as "[ f]inding new suppliers for sea urchin," "[ f]inding new office space," and 
creating a company website. The Beneficiary himself would be responsible for training 
employees regarding the parent company's manufacturing process; and 
• "Project Charter Forms" and "Key Tasks Status Reports" showing that the Beneficiary 
approved the development of a website and a search for new office space. 
The Director denied the petition a second time, finding that the Petitioner had not provided enough 
details about the Beneficiary's actual duties (rather than general areas ofresponsibility). 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. Id. 
On appeal, the Petitioner asserts that it "has described in great detail with supporting documentation 
the Beneficiary's duties." The Petitioner repeats the initial job description. That description lists 
4 
Matter of T-S-P-USA, LLC 
various functions that the Beneficiary would "oversee" or "approve." Decision-making authority is 
consistent with a managerial position, but it is not dispositive. The Petitioner has not shown that the 
daily operations of the business require the Beneficiary to make so many decisions that, collectively, 
they constitute the Beneficiary's predominant task. 
The Beneficiary may have hiring and firing authority, but the company had only eight employees at 
the time of filing and the record does not show sufficient turnover to make personnel functions a major 
element of the Beneficiary's work. 
The Petitioner also asserts that the Beneficiary's authority over subordinates is managerial. Therefore, 
we must examine the submitted information about the subordinate staff. 
B. Staffing 
The Petitioner's organizational chart showed the following structure at the time of filing the petition: 
Manager (the Beneficiary) 
Administration Manager Marketing Manager 
I I 
2 Administrative Assistants (part-time) Marketing Supervisor 
Marketing Assistant Logistics Assistant 
The Petitioner provided job descriptions for the subordinate employees. The Petitioner indicated that 
the Beneficiary's immediate subordinates have the following duties: 
Administration Manager 
• Maintain company staff by recru1tmg, selecting, orienting and training 
employees according to authorized personnel policy. 
• Approve and implement administrative systems. 
• Provide communications systems by identifying needs and options. 
• Implement tasks and responsibilities to employees with skill sets. 
• Achieve financial objectives by anticipating requirements; approve budget 
preparation. 
• Approve policy development, documentation and performance standards from 
situation and problems that arises [sic]. 
Marketing Manager 
• Approve the marketing strategy and plan. 
• Implement organizational structure and chain of command. 
• Management of the marketing mix and logistics. 
• Implement performance standards and monitor inventory. 
• Report on external opportunities. 
5 
Matter of T-S-P-USA, LLC 
• Identify aspects of the business that affect customer satisfaction through 
approval of policy development and documentation. 
Although the organizational chart identified three different subordinates to the marketing manager, the 
Petitioner provided the same job description for all three, involving collecting marketing information; 
managing inventory and seafood forwarding; entering sales and price data into the database; taking 
inventory; and placing orders. 
The assertion that the administration manager has authority to "approve budget preparation" and 
"policy development" necessarily implies that someone else, at a lower level, is preparing the budget 
and developing policy. But the Petitioner did not show that this is the case. At the time of filing, the 
administration manager's only subordinates were administrative assistants, whose stated duties 
consisted of preparing financial statements (which are not the same thing as budgets), preparing 
mvmces and other shipping documents, arranging customs clearance, and maintaining inventory 
records. 
Four weeks after filing the petition, the Petitioner entered into an agreement with an outside party "to 
introduce [the Petitioner's] product(s), market, sell, brand build, and assist with business development 
in the USA market." This agreement would appear to overlap with the responsibilities of the 
Petitioner's own marketing department, which comprises most of the company's employees. 
On motion, the Petitioner submitted materials relating to tasks performed by the Beneficiary's 
immediate subordinates, such as training records showing that the two lower-level managers trained 
new hires, and office memoranda prepared by the administration manager. These materials indicate a 
chain of command and delegation of tasks, but do not suffice to show that the Beneficiary's own duties 
are primarily managerial. 
Other materials submitted on motion raise questions of credibility. The Petitioner submitted a "Market 
Analysis Report," dated June 1, 2018, and a "Business Development Plan," dated June 13, 2018, both 
attributed to the Petitioner's marketing manager and reviewed by the Beneficiary. These dates and 
the author credit, however, are not credible. In a prior submission, the Petitioner had submitted a June 
13, 2018 "Business Development Plan" prepared by the third-party marketing firm mentioned 
previously. Language from that third-party document has been copied and rearranged into the two 
documents that the Petitioner submitted on motion. 
Similarly, an "Employee Handbook" is credited to the administration manager, but it contains 
information that does not apply to the petitioning company ( such as references to "the CEO, President, 
or CFO," titles that according to the Petitioner's organizational chart do not exist at the company), and 
therefore appears to have been copied from a generic template. The adaptation of such a document 
from an existing source would presumably take substantially less time than drafting an original 
handbook. 
Raising farther questions, the motion filing included job descriptions for the "Sales and Marketing 
Supervisor," "Sales and Marketing Executive," "Sales and Marketing Assistant," "Logistics 
Coordinator," "Administrative Assistant," and "Administrative Coordinator." Many of these positions 
6 
Matter of T-S-P-USA, LLC 
did not exist when the Petitioner first filed the petition, and any subsequent restructuring of the 
organization cannot retroactively establish eligibility. A petitioner must meet all eligibility 
requirements at the time of filing, and continue to demonstrate eligibility throughout adjudication. See 
8 C.F.R. § 103.2(b)(l). A petitioner must establish that the position offered to a beneficiary, when the 
petition was filed, merits classification as a managerial or executive position. See Matter of Michelin 
Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). 
Furthermore, the new descriptions are inconsistent with respect to who is subordinate to whom: 
Title 
Sales and Marketing Supervisor 
Sales and Marketing Executive 
Sales and Marketing Assistant 
Administrative Assistant 
Administrative Coordinator 
Subordinates 
Sales and Marketing Executive; Sales and Marketing Assistant 
Sales and Marketing Supervisor; Sales and Marketing Assistant 
Sales and Marketing Supervisor; Sales and Marketing Executive 
Logistics Coordinator; Administrative Coordinator 
Logistics Coordinator; Administrative Assistant 
The contradictory chains of authority significantly impair the credibility of the job descriptions. 
Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other 
evidence submitted in support of the requested immigration benefit. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
The Petitioner has established that the company is doing business and employs a small staff over which 
the Beneficiary exerts ultimate authority. But discrepancies in the record cast doubt and prevent a 
finding that the Petitioner has met its burden of proof. Discretionary authority is a necessary, but not 
a singularly sufficient, element of a managerial capacity. Because of the unanswered questions about 
the roles of the Beneficiary and his subordinates, we will dismiss the appeal. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-S-P-USA, LLC, ID# 5018887 (AAO Sept. 24, 2019) 
7