remanded L-1A Case: Food Import/Export

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 14, 2024 In Re: 30064000 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA Manager or Executive) 
The Petitioner is a plant-based food importer and exporter that seeks to employ the Beneficiary 
temporarily as general manager of its new office 1 under the L-lA nonimmigrant classification for 
intracompany transferees who are coming to be employed in the United States in a managerial or 
executive capacity. Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. 
§ 1101(a)(15)(L). 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish that the Beneficiary was employed abroad in a managerial or executive capacity and that 
he would be employed in a managerial or executive capacity within one year of the petition's approval. 
The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for consideration and entry of a new 
decision consistent with the following analysis. 
I. ANALYSIS 
First, we conclude that contrary to the Director's determination, the Petitioner adequately described 
the Beneficiary's foreign job duties and provided sufficient evidence regarding the foreign entity's 
hierarchy and staffing to show that the Beneficiary's position abroad was more likely than not in a 
managerial or executive capacity. 
We also find that the Director offered a deficient analysis of the relevant facts and legal standards 
regarding the Beneficiary's U.S. employment. Although the Director concluded that the Beneficiary 
would not be employed in a managerial or executive capacity, the analysis focused exclusively on 
whether the Beneficiary would be employed in an executive capacity despite lack of an express claim 
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(l)(l)(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. 
by the Petitioner specifying the Beneficiary's proposed position as executive. Rather, the Petitioner 
claimed that the Beneficiary would "direct the overall management and supervise the managerial 
employees," thereby attributing elements of both statutory definitions to the proposed position. See 
sections 101(a)(44)(A)(ii) and 101(a)(44)(B)(i) of the Act. Although this ambiguity in the Petitioner's 
claim indicates a need for further clarification, the Director's analysis did not acknowledge this 
ambiguity and incorrectly focused on one statutory definition to the exclusion of the other. 
Further, it does not appear that the Director properly analyzed the Beneficiary's proposed job duties 
pursuant to the new office regulations, which do not require the Petitioner to establish its ability to 
support the Beneficiary in a managerial or executive position at the time of filing, but rather allow the 
Petitioner one year from the date of the petition's approval to establish that its operation will support 
the Beneficiary in an executive or managerial position. See 8 C.F.R. § 214.2(1)(3)(v)(C). The Director 
determined that the Petitioner did not adequately describe the Beneficiary's job duties and concluded 
that the Petitioner did not establish that the Beneficiary would be employed in an executive capacity. 
There is no indication that the Director properly assessed the Beneficiary's job duties under the new 
office provisions. 
In addition, the Director incorrectly applied the statutory definitions to the Beneficiary's subordinates 
when he determined that the job descriptions of the Beneficiary's two subordinates "were more 
indicative of employees who will perform the necessary tasks to provide a service or to produce a 
product." However, sections 10l(a)(44)(A) and (B) of the Act only require a petitioner to establish 
that the beneficiary of the visa petition meet the statutory criteria of managerial or executive capacity. 
Thus, whether the Beneficiary's subordinates primarily perform tasks that are necessary to provide a 
service or to produce a product is not relevant for the purpose of determining the managerial or 
executive nature of the Beneficiary's proposed position. 
In light of the above, we find that the Director did not properly review the evidence and provided an 
analysis that is inconsistent with statutory criteria. Therefore, we cannot affirm the denial. 
II. BASIS FOR REMAND 
Notwithstanding the Director's error, the record as presently constituted lacks sufficient evidence 
establishing that the Petitioner's operation would support the Beneficiary in a managerial or executive 
capacity within one year of the petition's approval. 
First, as noted earlier, the Petitioner has not stated with sufficient clarity whether the Beneficiary's 
position would be in a managerial or executive capacity. Claiming that the Beneficiary would "direct 
the overall management and supervise the managerial employees" attributes elements of both statutory 
definitions and does not clarify that the Beneficiary's position will fall within the statutory scheme of 
one definition or the other. The Petitioner also states that the Beneficiary will have the authority to 
recruit and hire, which is consistent with the definition of managerial capacity, while on the other hand 
claiming that the Beneficiary will assume a policy-making role, which is consistent with the definition 
of executive capacity. See sections 101(a)(44)(A) and 101(a)(44)(B) of the Act, respectively. 
A petitioner claiming that the beneficiary's position will consist of a mixture of managerial and 
executive duties will not meet its burden of proof unless it has demonstrated that the beneficiary will 
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primarily engage in either managerial or executive capacity duties. See section 10l(a)(44)(A)-(B) of 
the Act. While in some instances there may be duties that could qualify as both managerial and 
executive in nature, it is the petitioner's burden to establish that the beneficiary's duties meet each set 
of criteria set forth in the statutory definition for either managerial or executive capacity. Thus, this 
petition may not be approved if Petitioner does not clarify its claim and provide evidence to show that 
it will support the Beneficiary in the designated capacity within one year of this petition's approval. 
We also find that the Petitioner provided a deficient business plan that does not outline a hiring 
timeline that explains when the Petitioner expects to fill the staffing vacancies depicted in the proposed 
organizational chart and whether it expects to fill those vacancies within its first year of operation. 
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 or executive 
capacity. The 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 or executive in 
nature within one year of the petition's approval. Accordingly, we consider the totality of the evidence 
in determining whether the proposed 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 business plan describes the Petitioner's business model, which focuses on importing the parent 
entity's products and engaging in the wholesale and direct customer sales of those products. Although 
the business plan mentions the Petitioner's intent to expand its operation "to include services that are 
essential to client's [sic] needs," it does not identify the "essential" services. And while the business 
plan also discusses its intent to develop business opportunities through trade show participation and 
exploration of the pet food market, it offers no specifics about the projected costs, timeline, or staff 
required to pursue an expansion into the pet food market. Likewise, the business plan's mention of 
increasing the Petitioner's online presence through online tools and technical solutions is also 
ambiguous, as the proposed organizational chart does not include any IT staff who would foreseeably 
be required in order for the Petitioner to achieve this objective. 
Lastly, while the business plan offers a financial overview which includes revenue projections and a 
list of projected operating expenses over a three-year period, it does not explain how the revenue 
projections were calculated, establish that the Petitioner has sufficient fonding to offset projected costs, 
or provide the individual salary breakdowns for anyone other than the Beneficiary and the two 
employees whom the Petitioner claims to have employed at the time of filing. 
As stated earlier, the Petitioner must demonstrate that the proposed position is plausible based on its 
anticipated staffing levels and stage of development within a one-year period. See 8 C.F.R. 
§ 214.2(1)(3)(v)(C). The position description alone is insufficient to establish that a beneficiary's 
duties would be primarily in a managerial or executive capacity, particularly in the case of a new office 
petition where much is dependent on factors such as a petitioner's business and hiring plans and 
evidence that the business will grow sufficiently to support a beneficiary in the proposed position. 
Here, the record as presently constituted does not show that the Petitioner, within one year of this 
petition's approval, will be adequately staffed and fonded to employ the Beneficiary in a managerial 
or executive capacity. 
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III. CONCLUSION 
In sum, the Petitioner did not clearly designate the Beneficiary's proposed position as managerial or 
executive and did not provide sufficient evidence to show that the Petitioner would more likely than 
not employ the Beneficiary in the designated position within one year of this petition's approval. 
However, because the Director offered a deficient analysis and incorrectly applied the law, we will 
withdraw the Director's decision and remand the matter for farther proceedings. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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