sustained L-1A Case: Food Service And Distribution

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 15, 2024 In Re: 30452470 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA Manager or Executive) 
The Petitioner intends to operate a restaurant as well as a "flavors and fragrance" distribution business. 
It seeks to employ the Beneficiary temporarily as director 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 10l(a)(15)(L) , 8 U.S.C. § l 10l(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 capacity. 2 While this is in line 
with the Petitioner's repeated claims that the Beneficiary's employment abroad was in a managerial 
and not in an executive capacity, the Director's analysis appears to conflate these two terms. 3 
The Director also determined that the record does not show that the Beneficiary managed subordinates 
who were managers, supervisors, or professional employees, despite acknowledging that the Petitioner 
submitted the foreign entity's organizational chart which shows that the Beneficiary had two 
subordinates who had "three to four subordinate employees" of their own. And although the Director 
noted that the Petitioner did not provide evidence that the foreign entity employed the listed 
subordinates, the request for additional evidence did not instruct the Petitioner to provide such 
evidence, nor does the statute or applicable regulation require that such evidence be submitted. In 
essence, the Director made an adverse determination based on the absence of evidence that was never 
requested and which the Petitioner is not required by the relevant statute or regulation to submit. See 
section 10l(a)(15)(L) of the Act; see also 8 C.F.R. § 214.2(1)(3)(v). 
1 The te1m "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. 
2 The Petitioner 's claim rests solely on the definition of managerial capacity. The Petitioner did not claim that the 
Beneficiary was or would be employed in an executive capacity. 
3 The Director referred to "a person's elevated position within a complex organizational hierarchy, and that person's 
authority to direct a function," and later determined that the record lacks evidence that the foreign entity had "a sufficient 
qualifying level of employees [ for the Beneficiary] to direct." These references indicate that the Director incorporated 
elements of executive capacity and incorrectly applied them to the analysis of the Beneficiary's position, which the 
Petitioner has consistently maintained as being in a managerial capacity. See sections 101(a)(44)(B) (for the definition of 
"executive capacity"). 
Finally, the Director concluded that the Petitioner did not provide sufficient evidence "to show that 
the [B]beneficiary's subordinates managed and/or supervised other managers, supervisors, or 
professional employees." See section 10l(a)(44)(A)(ii) of the Act. Essentially, the Director applied 
elements of the term "managerial capacity" to the Beneficiary's subordinates, even though section 
10l(a)(44)(A) of the Act only requires a petitioner to establish that the beneficiary of the visa petition 
meet the statutory criteria. In fact, whether the subordinates of the Beneficiary's subordinates, i.e., 
subordinates who are situated two tiers below the Beneficiary, were managers, supervisors, or 
professional employees is not relevant for the purpose of determining the managerial nature of the 
Beneficiary's own position abroad. 
On appeal, the Petitioner disputes the denial, asserting that the Director overlooked evidence, 
including a detailed discussion of the Beneficiary's foreignjob duties as well as the job duties of the 
Beneficiary's subordinates. The Petitioner also elaborated on the foreign entity's management 
hierarchy, focusing primarily on the management tiers of the Beneficiary and her subordinates and 
explaining how they interacted with one another, and which functions they each carried out within the 
context of the foreign entity's wholesale distribution business. The Petitioner also points to previously 
submitted performance evaluations that the Beneficiary completed with respect to her subordinates, 
pointing out that the Beneficiary did not perform operational tasks, but rather managed others who 
did. In sum, not only did the Petitioner further expound on the Beneficiary's former role and job duties 
within the context of the foreign entity's organizational hierarchy, but it also explained how, through 
previously submitted evidence, the Beneficiary's former position abroad satisfied the elements of the 
term "managerial capacity." 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 53 7, 53 7 n.2 (AAO 2015). Upon de novo review, 
and pursuant to the above, we conclude that the Petitioner has met its burden of proof, and we will 
therefore sustain the appeal. 
ORDER: The appeal is sustained. 
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