AAO’s Decision Date: 02/08/2017

Matter of __ ID# 134824 (AAO Feb. 8, 2017)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country: Mexico

Type of Company: Manufacturer of electrical components, industrial harnesses and cables

Type of Employment/Job Title: Business process director

Service Center: California

Decision: The appeal is denied.

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2017/FEB082017_01D7101.pdf

Issues & Facts:

Evidence of record did not establish that the Beneficiary's foreign employer, the Petitioner's Mexican subsidiary, has employed her in a managerial or executive capacity or in a position involving specialized knowledge [Ed. Note: should be Functional Managerial Capacity]

Director emphasized that the Petitioner did not provide the foreign entity's organizational chart to illustrate the Beneficiary's position within the company's hierarchy or to demonstrate who relieves the Beneficiary from performing the day-to-day duties of the function she is claimed to manage.

The Petitioner did not identify or document the "business analyst team," explain what specific tasks the Beneficiary performs to oversee projects and who carries out the projects, or indicate who develops tools and who performs the day-to-day duties required to ensure systems integrity.

The Petitioner stated that the Beneficiary's position is at a senior level, noting that she provides reports to the CEO and CFO and provides "direct analytical and systems analysis support" for the executive VP of global business process, the vice president of purchasing, the operational controller and the director of information systems. However, the Petitioner did not further describe the reports the Beneficiary provides to executives, who collects the data needed to prepare them, or what specific managerial tasks are involved in providing "analytical and systems analysis support" to these managerial and executive staff. The actual duties themselves reveal the true nature of the employment.

The Petitioner provided the requested breakdown of the Beneficiary's duties in response to the Director's Request for Evidence (RFE), but again did not identify who carries out the day-to-day tasks of the functions the Beneficiary is claimed to manage. For example, the Petitioner stated that the Beneficiary manages testing operations by "managerially ensuring" the installation, testing, maintenance and monitoring of computer programs and systems, but did not explain how she accomplishes this goal or who carries out these lower-level functions. Similarly, the Petitioner stated that the Beneficiary "directs the development, documentation and revision" of system design and test procedures but did not explain who actually develops and documents the procedures. The Petitioner noted that she "may" direct professional staff as part of her responsibility for coordinating the expansion and modification of systems but did not further identify these staff or how frequently the Beneficiary relies on subordinate staff to perform non-qualifying duties. Finally, the Petitioner stated that the Beneficiary coordinates the explanation and modifications of systems, and "managerially ensures" that correction of system errors, but, once again, did not identify who is tasked with actually troubleshooting and supporting these systems.

The duties describe above, which account for 54 percent of her time, imply that there is a need for subordinate IT staff to relieve the Beneficiary from having to perform the non-qualifying duties associated with her management of the company's computer and software systems. However, in response to the RFE and on appeal, the Petitioner has not claimed that the Beneficiary regularly supervises subordinate employees, even after initially claiming that the Beneficiary performs supervisory duties as a personnel manager and has a subordinate team of professional analysts under her direct supervision.

The remaining duties submitted in response to the RFE include non-managerial duties such as reviewing and analyzing data to locate problems, conferring with clients regarding system requirements, reading manuals and technical reports to keep up to date, providing staff with "senior assistance" in solving computer problems, determining hardware and software needs, and coordinating and linking computer systems to ensure compatibility. Further, we note that, other than indicating that the Beneficiary spends 2 percent of her time on "consult[ing] with management to ensure agreement on system principles," the breakdown of the Beneficiary's duties did not include responsibilities for reporting ·to, liaising with or otherwise interacting with high-level executives, despite the Petitioner's claim that such duties are a critical indicator of the Beneficiary's managerial position.
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AAO’s Decision Date: 02/10/2017

Matter of H-C- Inc., ID# 170811 (AAO Feb. 10, 2017)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country: India

Type of Company: Marketing and CCTV camera installation and surveillance services

Type of Employment/Job Title: General Manager

New Office or Existing Office: New Office

Number of Employees: intending to hire 5, but 6 in the business plan

Service Center: Vermont

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2017/FEB102017_01D7101.pdf

Issues & Facts:

evidence of record did not establish that the Beneficiary would be employed in an executive capacity within 1 year of approval of the petition.

The Director found that the Petitioner did not establish that the Beneficiary would be employed in a managerial or executive capacity within 1 year. The Director determined that the Petitioner provided a vague description of the Beneficiary's proposed duties that did not sufficiently establish what he would do on a day-to-day basis. In addition, the Director found that the record did not establish that the Beneficiary would supervise a subordinate staff of professionals, supervisors, or managers within 1 year.

In the RFE, the Director acknowledged the initial evidence and determined that it was insufficient to establish that the Beneficiary will be primarily supervising a staff of professionals, managers or supervisors or that the subordinate staff will relieve the Beneficiary from performing non-qualifying duties. The Director also found that the Petitioner did not indicate the foreign entity's financial ability to commence doing business and noted that the business plan did not provide a timetable of proposed actions for the first year of operations.

Finally, in response to the Director's inquiry regarding the size of the investment and the ability to pay the Beneficiary's salary and commence operations in the United States, the foreign entity stated in its letter that the company had received approximately $50,000 from its two shareholders to date and had used this money to cover office rent, accounting services, taxes and legal expense, with $41,280 remaining in the bank at the time it responded to the RFE. The foreign entity stated that it and its partner would infuse additional capital into the Petitioner so that the company can hire staff and begin U.S. operations. It stated that the Beneficiary will be paid through the Indian company "until U.S. business operations and payroll are approved and established and sufficiently funded."

The Petitioner submitted a statement from the foreign entity's bank indicating that it had the equivalent of $15,921.39 in its account as of August 2015, and its latest tax return showing Rs. 1,093,463 (approximately $16,000) in gross annual income.

Finally, in response to the Director's inquiry regarding the size of the investment and the ability to pay the Beneficiary's salary and commence operations in the United States, the foreign entity stated in its letter that the company had received approximately $50,000 from its two shareholders to date and had used this money to cover office rent, accounting services, taxes and legal expense, with $41,280 remaining in the bank at the time it responded to the RFE. The foreign entity stated that it and its partner would infuse additional capital into the Petitioner so that the company can hire staff and begin U.S. operations. It stated that the Beneficiary will be paid through the Indian company "until U.S. business operations and payroll are approved and established and sufficiently funded."

As noted, the Petitioner indicated· in both submitted business plans that it anticipates gross annual income of $150,000 in its first full year of operations and $175,000 in its second year. The Petitioner initially stated that it would pay its five employees a total of $75,000 per year and then, without explanation, increased this amount to $98,000 in its revised business plan. At the same time, the Petitioner provided salary figures for each of its proposed employees which indicated that it intends to pay them a total of $217,370, an amount significantly higher than its projected gross income.

In addition, the Petitioner has not provided its projected start-up costs or sufficient detail regarding any additional financial contributions it expects to receive from its owners. The foreign entity states that it will initially pay the Beneficiary's $50,000 salary and provide further influxes of cash, but its gross income in the previous year was significantly lower than the Beneficiary's salary and its bank account balance does not show that it has the ability to transfer a significant amount to the U.S. entity. The Petitioner provided evidence of a $20,000 initial wire transfer from its minority owner, but the record does not include evidence that he is committed to provide further funds or that he has additional funds to invest. The evidence as a whole does not support the Petitioner's claim that it would be able to hire five employees on a full-time basis at the stated salaries and the unresolved inconsistencies undermine the probative value of the submitted hiring plans. As a result, we cannot determine to what extent the Beneficiary would be relieved from performing non-qualifying duties related to the company's day-to-day technical, sales, and administrative operations.
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AAO’s Decision Date: 02/22/2017

Matter of G- Corp., ID# 188320 (AAO Feb. 22, 2017)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country: Venezuela

Type of Company: A used car dealership

Type of Employment/Job Title: President and chief executive officer

Service Center: Vermont

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2017/FEB222017_01D7101.pdf

Issues & Facts:

Had not established that the Beneficiary (1) had been employed abroad in a managerial or executive capacity, and (2) will be employed in the United States in a managerial or executive capacity.

In a letter submitted with the petition, the Petitioner stated that the Beneficiary "served as [the parent company's] Administrative Manager from August 2011 until May 2015 when she was transferred to hold a temporary executive position in our U.S. Company." The Beneficiary signed the letter in her capacity as president of the petitioning company. The Petitioner also submitted a copy of a letter the foreign entity's human resources manager, stating that the Beneficiary "has been employed by this company since August, 2011, in the position of Administrative Manager." In addition, the initial evidence included an undated "payroll chart" for the foreign entity on which the Beneficiary was listed as "administration and marketing manager."

The Director issued a request for evidence (RFE), stating that "the listed duties indicate that the beneficiary was directly involved in the provision of services." The Director asked the Petitioner to submit more details about the Beneficiary's former position abroad, and information to show that the position met all the elements of the definition of a managerial capacity. The Petitioner responded by repeating the same job description and asserting that the Beneficiary "is clearly a manager that exercised her authority and supervised other professionals or managers who actually carried out the day-to-day function of the business. [The Beneficiary] spent 100% of her time in managerial functions."

The Director denied the petition, based in part on a finding that the Beneficiary's job description is too vague to show exactly what the Beneficiary did for the foreign company. On appeal, the Petitioner repeats the Beneficiary's foreign job description, with no further comment regarding the deficiencies identified by the Director.

Upon review, we agree with the Director's assessment that the foreign job description lacks detail. For example, the Petitioner has stated that the Beneficiary spent 8 hours per week meeting with various people inside and outside the company "in order to coordinate the formulation of financial programs." This provides little insight into the nature of the Beneficiary's active role in the formulation of those programs.

Beyond the general deficiencies in the Beneficiary's job description, the record contains discrepancies regarding the nature of the Beneficiary's work abroad. In response to the RFE, stated that the Beneficiary "was given maternity leave for a year, starting on August 15th, 2014." The Petitioner also stated that the Beneficiary served as a function manager. "managing the administrative operations of the company." Specifically, the Beneficiary "maintained control of the overall U.S. Company's administrative activity," while "negotiating and entering into major business agreements on behalf of the U.S. Company." This statement appears to be inconsistent with the job duties stated above.

In all, the foreign company's organizational chart has 21 sections, some of which have labels such as "workers" that indicate or suggest multiple employees within a particular category. The company payroll chart submitted at the time of filing included 20 employees identified by name, job title, hire date, and level of education. Of these, 11 employees were identified as holding the position of "worker." Additional employees included a general manager, a director, a supervisor, a distribution manager and a maintenance supervisor. The remaining employees were the Beneficiary (identified as administration and marketing manager), a human resources and institutional relations manager an administrative coordinator/accounting and tax and a cashier Like the organizational chart, the payroll chart did not list any subordinate employees in the marketing or purchase departments.

On appeal, the Petitioner repeats the assertion that the Beneficiary "supervised other. professionals or managers" but does not address the Director's specific concerns. The Petitioner states that the organizational chart shows that the foreign company "employs 21 individuals in Venezuela," but does not explain why the lists of employees show only 17 and 20 names, respectively. Furthermore, the organizational chart does not show 21 employees, but rather 21 blocks, several of which are either departments or refer to multiple unspecified "workers."
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In the RFE, the Director stated that the Beneficiary's job description consists largely of "vague and general terms" such as "establishing goals and policies," combined with non-executive functions such as "locate and remove or correct possible errors in information provided by the administrative and logistical systems that could impact the business operations." In response, the Petitioner repeated the assertion that the Beneficiary's functions are entirely executive in nature. The Petitioner did not address the specific examples of non-qualifying duties that the Director had cited in the RFE. Instead, the Petitioner stated that the Director did not specify what was unsatisfactory about the job description.

In the denial notice, the Director stated that the percentages of time allocated to various duties "do not appear to be realistic when considered in conjunction with the scope and capacity of [the Petitioner's] retail used car operation, and it is unclear how many of the task[s] described can be deemed to be executive in nature."

On Form I-129, the Petitioner indicated that it had four employees in the United States. That number is consistent with the Petitioner's IRS Form 941, Employer's Quarterly Federal Tax Return, for the first quarter of 2016.

In denying the petition, the Director repeated the deficiencies first described in the RFE, and found that the Petitioner had not shown that any of the Beneficiary's subordinates qualify as managers. The Director stated that the Petitioner had not shown who performs various key functions of the company. Although the Petitioner had claimed that it outsources some functions to contractors, the Director found that the Petitioner had documented only minimal use of those contractors (for example, $625 spent on legal and professional fees).
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AAO’s Decision Date: 02/22/2017

Matter of C-. Inc., ID# 205808 (AAO Feb. 22, 2017)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Type of Company: Manufacturing of boutique wedding stationery and related products

Type of Employment/Job Title: Founder and creative director

New Office or Existing Office: New Office

Number of Employees:

Service Center: Vermont

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2017/FEB222017_02D7101.pdf

Issues & Facts:

Evidence of record did not establish that: (1) the Beneficiary has been employed abroad in a managerial capacity; and (2) the Petitioner's new office would support a managerial position within 1 year of the approval of the petition.

The Beneficiary's resume contains a different job description, which, like the organizational chart, indicates that the Beneficiary personally designed products rather than simply overseeing their production by subordinates

The Director issued a request for evidence (RFE), asking for more details about the Beneficiary's employment overseas, including the amount of time she spent on various tasks. In response, the Petitioner acknowledged that the Beneficiary performed "some operational or administrative tasks from time to time" owing to the company's small size, but the Petitioner maintained that the Beneficiary "primarily manages the design team and department."

The record, however, strongly suggests that the Beneficiary herself performs much of that design process, rather than simply reviewing designs prepared by subordinates. It also appears likely that the Beneficiary directly deals with customers, because the Petitioner has not identified any other staff at the foreign company who were responsible for that non-qualifying function. As we will discuss below, the Beneficiary has only two year-round subordinates at the foreign company, and therefore the assertion that she spends 60% of her time on personnel issues does not appear to be consistent with the available facts.
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The Petitioner submitted payroll information for the foreign company's year-round employees, but no documentation to show that it had employed freelance designers, or for how long.

The Petitioner's response to the RFE makes it clear that the Beneficiary's subordinates were not "professionals" in the relevant sense of that term. The Petitioner stated that the foreign entity does "not require [its] designers to have bachelor's degrees." The statutory definition of "profession" does not include art designers or closely related occupations.
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The Director further found that the Petitioner had not established that the new office would be able to support a managerial position within 1 year. The Director determined that the Petitioner did not submit sufficient evidence to demonstrate that the new office is prepared to commence doing business upon the approval of the petition, and focused mainly on the size of the U.S. investment and the Petitioner's proposed hiring plan.

On appeal, the Petitioner submits additional information regarding the size of the investment and the source of the funds, and asserts that the, new office's small projected size should not prohibit a finding that the company will support a managerial position within 1 year.

The regulation at 8 C.F.R. § 214.2(1)(5)(C)(2) requires the Petitioner to show the size of the United States investment and the financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States. The Director found that the Petitioner had not established that it has sufficient funds and equipment to meet its start-up costs and begin operations upon approval of the petition. The Director based this conclusion, in part, on a finding that the Petitioner's start-up costs exceed $100,000, while the only pre-_ filing infusion of capital was a $60,000 wire transfer. The Director did not cite a source for the $100,000 figure. The Petitioner's business plan cited start-up costs of $20,000. It appears that the Director may have included the Petitioner's projected salary expenses in her calculation of start-up costs. However, first-year salaries are ongoing expenses offset by revenue, rather than funds that are due up front, no later than when the company begins operations.

With respect to equipment, the Director noted that photographs of the Petitioner's leased business space do not show any equipment needed to carry out the intended stationery design and printing business. The Petitioner, however, indicated that the foreign company would ship a substantial amount of equipment to the Petitioner upon approval of the petition. A price list from a U.S. vendor listed additional items. The listed prices exceed the stated start-up cost of$20,000, but remain well within the margin afforded by the documented wire transfer. The Director's conclusions about the new office's readiness to begin doing business did not take key evidence and information into account, and therefore we withdraw that conclusion. This does not change the outcome of the decision, because other grounds for denial remain.
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The Petitioner's business plan emphasized web-based commerce, but made no allowance for any in house staff to take orders, process payments, store inventory, or ship products to purchasers. The plan's projected profit and loss statement showed anticipated expenses for shipping and marketing, but did not indicate who would perform those functions in place of employees. The business plan foresaw three employees during the first year: the director of design (the Beneficiary), the director of production, and one production assistant. Because production and design are separate departments, the Beneficiary would have no subordinates during the first year.
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AAO: Doing business abroad

The Petitioner has stated its intention to transfer both of the foreign company's key operational officers (who are also its owners) to the United States and has not stated who would operate the company in their absence. The Petitioner has also submitted a packing list and tax invoice indicating that the foreign company intends to ship R431 ,920.25 worth of design and printing equipment and supplies to the Petitioner upon approval of the petition. Although the Petitioner provided several months of recent bank statements for the foreign entity, the record does not contain evidence that the foreign entity purchased the listed items in the months preceding the date on the packing notice. Rather, it appears the foreign entity may in fact be shipping its own equipment and supplies to the U.S. company, as the two companies make, or intend to make, the same type of merchandise.
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AAO’s Decision Date: 02/22/2017

Date of Filing: 04/26/2016

Matter of H-R-E-D-A-, Inc., ID# 205581 (AAO Feb. 22, 2017)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Type of Company: A real estate developer

Type of Employment/Job Title: President and general manager

New Office or Existing Office: New office

Number of Employees: 1

Service Center: Vermont

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2017/FEB222017_03D7101.pdf

Issues & Facts:

The Director concluded that the evidence of record did not establish that: (1) the Beneficiary would be employed in the United States in a managerial or executive capacity within one year; and (2) the Petitioner had secured sufficient physical premises to house the new office.

The Petitioner lists the Beneficiary's duties as including both managerial and executive tasks and administrative or operational tasks, but does not quantify the time the Beneficiary would spend on these different duties. Also, several elements refer to oversight, assistance, or participation in various activities, without identifying specific tasks that these duties might entail. This lack of specificity is important because several of the Beneficiary's proposed daily tasks, such as property inspection, market research, and preparation of meeting minutes, do not fall under traditional managerial or executive duties as defined in the statute.

On Form 1-129, under "Current Number of Employees in the United States," the Petitioner stated "6." The. initial filing included a letter from counsel, who stated that the Petitioner "plans to employ at least 8-10 employees within one year of operation, the company already has 7 employees with one manager and three sales [staff] running their business."

The Petitioner's business plan states, on page 9, that the company "will commence its operations in 2015 with 2 part-time employees and will have 7 employees and maintain this staff level throughout the first five years." Page 8 of the business plan indicated that the Beneficiary "will immediately look to appoint the remaining 4-5 members of staff," while page 17 indicated that the Beneficiary "will be supported by a team of five (5) additional employees, all of whom will be appointed at the commencement of business operations in May 2016."

The chart listed a name beside each title, indicating that the Petitioner had already recruited and identified individuals to fill those positions, even if their employment had not yet begun. Nevertheless, on page 10 of the business plan, the Petitioner stated that the Beneficiary "will look to recruit" a construction site manager. The business plan also referred to an unspecified number of sales representatives, not shown on the organizational chart.

The Director issued a request for evidence (RFE), noting apparent inconsistencies in the Petitioner's initial statements. The business plan stated that the Petitioner would commence operations with two employees, whereas on Form I-129, the Petitioner had stated that it already had six employees. The Director asked for additional evidence to establish its current staffing and evidence to show how it determined its projected staff size.

The business plan indicates that, once fully staffed, the company plans to pay more than $358,000 in salaries per year. (The exact figure is higher because the Petitioner did not specify salaries for some positions.) The Petitioner has not established that it will be able to pay these salaries. The Petitioner referred to "revenues modeled to peak at $8.7 million per annum by the end of [the] fifth year," but the Petitioner has documented minimal proposed business activity for the first year. Specifically, the Petitioner has provided evidence related to the purchase of a $I50,000 vacant lot on which it intends to build a single family home. The Petitioner estimates the profit that would follow the sale of the land after development, but the Petitioner does not appear to have accounted for the costs of developing the land in its first-year projections. These deficiencies call into question the Petitioner's ability to carry out its stated hiring plans and whether it would more likely than not support a managerial or executive position within I year.
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Physical premises: The Petitioner's initial submission included a copy of a "Renewal Agreement" with executed in October 2015, for a two-person office (number beginning February I, 2016. The agreement is a generic one which does not describe the specific space provided, for instance by specifying the dimensions or square footage. Photographs of the Petitioner's office show two desks, but they do not show enough of the room to give a sense of its size.
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AAO: Qualifying foreign employment. On Form I-129, the Petitioner stated that the Beneficiary had served as the "Manager of the Business Development and Planning Department" at the foreign company. stated that the Beneficiary "spends 90% of his time in investigating the real estate market in China and around the world. He either makes personal trips or listens to his teams regarding new information of sources of real estate markets." stated that the Beneficiary did this work with the help of "his two assistants."

The statements cited above contain few details regarding identifiable managerial tasks, and appear to indicate that the Beneficiary spent most of his time collecting information about investment opportunities. The Petitioner did not explain how this activity meets the elements of the definition of managerial capacity.
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AAO’s Decision Date: 02/22/2017

Matter of A-D-A-G- LLC, ID# 223959 (AAO Feb. 22, 2017)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Type of Company: Sells security equipment manufactured by its foreign affiliate

Type of Employment/Job Title: General Manger

New Office or Existing Office: L-1 Extension

Number of Employees: 5

Service Center: Vermont

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2017/FEB222017_04D7101.pdf

Issues & Facts:

The Director concluded that the evidence of record did not establish that the Beneficiary will be employed in the United States in a managerial or executive capacity.

The Director issued a request for evidence (RFE). The Director stated that the Petitioner had not shown that, during its first year of operations, the Petitioner had developed to a point that it could support a primarily managerial or executive position. The Director also asked the Petitioner to specify whether it seeks to employ the Beneficiary as a manager or as an executive. The terms are not interchangeable, and there is no provision for eligibility based on a combination of factors from the two definitions.
 
Also, regardless of the source, the new job description is very different from the earlier version, in ways that cannot be attributed simply to a difference of perspective. The new description indicates that the Beneficiary would spend up to 65% of her time on tasks relating to the "import/export department," but the Petitioner has no import/export department. Also, the new job description and accompanying commentary repeatedly refer to the female Beneficiary with masculine pronouns. It is not evident that the new statement on appeal describes the same job that the Petitioner had previously described. The submission of two significantly different descriptions for the same position raises questions of credibility.

As noted above, the Beneficiary's stated duties include "[i]mplement[ing] the corporation's accounting practices" and "[a]nalyzing financial information." The Petitioner did not explain who compiled and presented that information in the absence of the yet-to-be-hired finance assistant. Preparation of financial information is administrative rather than managerial or executive. Because the Petitioner is no longer a new office, we will not consider claims regarding future hiring.

The Petitioner submitted capsule job descriptions for the subordinate employees. The only subordinate not identified as a front-line employee with an operational or administrative role was the operations manager.

In the RFE, the Director found that none of the Beneficiary's subordinates work in professional occupations, and that only one, the operational manager, had supervisory responsibilities. The Director stated that the Petitioner had not shown that the Beneficiary's oversight of the company's small staff makes her duties primarily those of a manager or executive. The Director asked for additional information about the Beneficiary's subordinate staff.

In response, the Petitioner submitted payroll documents and a new organizational chart, showing that the Petitioner had added a marketing manager and a second sales representative, both hired after the petition's May 2016 filing date. The new chart also showed the administrative assistant as being subordinate to the operations manager, which the earlier chart did not show. The Petitioner submitted a copy of a "Bachelor of Social Communication" diploma issued to its new marketing manager, along with evidence that it hired this employee in July 2016, nearly 2 months after the petition's filing date. The position did not exist at the time the Petitioner filed the petition; it appeared on neither of the two organizational charts submitted initially. Therefore, the Petitioner's subsequent creation of the position cannot retroactively qualify the Beneficiary as of the petition's filing date.

The organizational chart shows that the Beneficiary had one subordinate (specifically, the operations manager) with subordinates of his own at the time of filing. The Petitioner has not established that the Beneficiary's primary duty is oversight of this one supervisor (whose own duties are questionable, as we have discussed). The Beneficiary's two conflicting job descriptions contain no discussion of subordinates except to refer to "[h]iring and training professionals." As explained above, the Petitioner has not shown that any of the Beneficiary's subordinates qualify as professionals.
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AAO’s Decision Date: 02/27/2017

Matter of H-G-T- Co., ID# 227575 (AAO Feb. 27, 2017)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country: Iraq

Type of Company: Shipping company

Type of Employment/Job Title: Executive Director

New Office or Existing Office: New Office

Service Center: California

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2017/FEB272017_01D7101.pdf

Issues & Facts:

The Director concluded that the evidence of record did not establish that: (1) the Beneficiary has been employed abroad in a managerial or executive capacity; (2) the Petitioner had secured sufficient physical premises to begin doing business; and (3) the Petitioner will be able to employ the Beneficiary in a managerial or executive capacity within 1 year after the approval of the petition.

The Director issued a request for evidence (RFE), stating that the Petitioner's initial submission did not include a description of the Beneficiary's day-to-day duties at __. The Director asked for payroll documentation to confirm the Beneficiary's continuous employment abroad and additional information to show that the Beneficiary's duties qualified as either managerial or executive.

The Director denied the petition, in part because the job description did not contain enough information about the Beneficiary's duties. The Director noted that the Beneficiary claimed to be a "chief executive" while also citing duties that are more akin to those of a personnel manager. The Director stated that the Petitioner cannot establish eligibility with a "hybrid" position that combines some elements of a managerial capacity with some elements of an executive capacity; the Beneficiary's position must meet every element of either a managerial or an executive capacity.

The Petitioner has not provided enough information about the Beneficiary's duties or the roles of his subordinates to demonstrate that the Beneficiary primarily acts as a function manager or as a personnel manager of the foreign company. The Petitioner listed the foreign entity's employees by name and job title, but did not provide information regarding their duties or educational qualifications. Without this evidence, we cannot determine whether there are any supervisory, professional or managerial employees, nor can we discern whether the staff relieves the Beneficiary from involvement in the foreign entity's day-to-day operations. The Petitioner did not articulate or attempt to support a claim that the Beneficiary primarily manages a specific function of the company.

On Form I-129, the Petitioner indicated that it intends to operate a "transportation/logistics" business and had one U.S. employee at the time of filing. The Petitioner's initial submission showed that the Beneficiary owns a 60% interest in the petitioning company and sits on its board of directors, but otherwise the Petitioner provided no information about the new U.S. office or the Beneficiary's intended role in the company.

In response to the RFE, the Petitioner stated "the company's goals is to primarily serve the logistic needs of Iraqi nationals currently living in the United States by engaging in services such as shipping cars, clothes, trucks, heavy duty equipment, and charitable donations from the United States to Iraq." The Petitioner also submitted an unsigned statement on letterhead stating that the new U.S. office currently employs a secretary, and that, within the first year of operation, it intends to hire an assistant manager, an accountant, and a logistics manager. The Petitioner did not provide job descriptions for these positions. The statement further indicated that the company "also plans to rent a warehouse," for which it would hire a warehouse manager and a marketing manager, and use contract labor "to load and unload containers."

The two statements in the RFE response are not consistent with respect to the Petitioner's intended staffing. Most significantly, the Beneficiary referred to a chief operating officer, a position not mentioned on the unsigned statement, while the statement refers to an assistant manager, a position not mentioned in the Beneficiary's statement. As with the Beneficiary's foreign duties, the Petitioner has not provided sufficient information about the duties the Beneficiary will perform in the United States. Instead, the emphasis has been on his oversight of duties to be performed by others. Concerning the training of the chief operating officer, employee training is not an executive function.
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Sufficient space

In the denial notice, the Director noted that "the photographs show the interior of a space numbered and the exterior of a space numbered No explanation was provided to address this discrepancy." The Director also noted that the lease specifies that the tenant may only use the space for a "retail store." Finally, the Director found that, although the Petitioner stated that it will need warehouse space and employ a warehouse supervisor, the Petitioner had not secured a warehouse.
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AAO’s Decision Date: 02/27/2017

Matter of C-G- LLC, ID# 155554 (AAO Feb. 27, 2017)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker
Foreign Country: Belgium/Puerto Rico

Type of Company: international retail and wholesale of fashion and construction products

Type of Employment/Job Title: Chief executive officer

New Office or Existing Office: Existing Office

Number of Employees: 6 in the US

Service Center: Vermont

Decision: The motion is denied

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2017/FEB272017_06D7101.pdf

Issues & Facts:

Did not establish that the Beneficiary will be employed in an executive capacity in the United States.

A significant number of his daily tasks were not qualifying executive duties. These duties included, but were not limited to representing foreign manufacturers in Puerto Rico, locating prospective marketing channels for placing construction products in Puerto Rico and the U.S. market overall, negotiating contracts with distributors in Puerto Rico, facilitating the import of materials from overseas, developing relationships with Puerto Rican retail chains by meeting, and making presentations of the company's products. We found that the duty description as a whole, did not provide a sufficient breakdown of how much time the Beneficiary would allocate to executive duties as opposed to marketing and business development tasks for the company's construction materials wholesale business.

We also reviewed the Petitioner's business model, its organizational structure, the Beneficiary's subordinate employees, and whether there were sufficient staff to relieve the Beneficiary from performing the operational duties, particularly those of its construction department, as the record did not reflect that the Beneficiary would have any significant involvement in the day-to-day operation of the Petitioner's fashion department, which consists of a retail women's clothing store. The record prior to the denial indicated that all the Petitioner's employees were assigned to manage or operate the store, while there were no employees assigned to perform the non-executive tasks of the construction materials department, such as sales, inventory, logistics, imports and marketing associated with the wholesale distribution of multiple product lines.

We further found that the Petitioner claimed for the first time on appeal that employees of the Petitioner's Bulgarian affiliate would relieve the Beneficiary from performing administrative, sales and other non-qualifying duties associated with the trading of construction materials in Puerto Rico. We reviewed the foreign entity's organizational chart and the foreign employees' employment contracts and found that there was insufficient evidence to show that the foreign employees relieve the Beneficiary from performing day-to-day operational tasks associated with the sales, inventory, logistics, imports or marketing of the construction materials products in Puerto Rico and the United States. Accordingly, absent evidence that someone other than the Beneficiary was available to perform the majority of the non-executive, day-to-day duties of the company's construction materials distribution business, we found insufficient evidence to establish that the Beneficiary's actual duties would be primarily executive in nature as of the date of tiling.
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AAO’s Decision Date: 02/28/2017

Matter of KRS-, LLC, ID# 181149 (AAO Feb. 28, 2017)

Appeal of L-1A Intracompany Transfer of Executive or Manager, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country: Venezuela

U.S. State of Operation: Texas

Type of Company: A supplier of equipment and materials for the oil and gas industry

Type of Employment/Job Title: Company Controller

New Office or Existing Office: Extending L-1A

Number of Employees: 5

Service Center: Vermont

Decision: The appeal is dismissed

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2017/FEB282017_01D7101.pdf

Issues & Facts:

The Director concluded that the evidence of record did not establish that the Beneficiary would be employed in a managerial or executive capacity under the extended petition.

In a letter in support of the petition, the Petitioner, a material and equipment supplier for the oil and gas industry with five claimed employees, described the Beneficiary's position of company controller as "a high level executive position responsible for managing the financial and accounting activities of our company with a focus on the oil and gas industry, and further developing the business activities of our office in Texas." The Petitioner provided a list of approximately 30 duties and later, in response to a request for evidence, resubmitted the same list of duties, indicating that the Beneficiary would spend between 2 and 4 percent of his time on each of the listed tasks. It further stated that the Beneficiary "will be responsible for the essential function of directing and managing the financial and accounting activities of our U.S. Corporation."

While the position description was lengthy, the individual listed job duties were repetitive and general in nature and did not clearly illustrate the Beneficiary's claimed role as controller for an international group of companies. The job description conveyed the Beneficiary's authority over the Petitioner's financial matters, noting that he will "direct, control and oversee activities in the accounting, financial and taxation areas," maintain a system of accounting policies and procedures, "oversee the operations of the accounting department, including the design of accounting systems," oversee compliance with government reporting requirements, direct the preparation of financial statements, "ensure the issuance of complete financial statements," and "maintain a system of controls over accounting transactions," amongst other duties.

Here, while the evidence showed the Beneficiary would be its senior employee with respect to financial activities, the breakdown of the Beneficiary's duties was disjointed and did not present a clear picture of what he primarily does on a day-to-day basis or to what extent he is relieved from performing non-qualifying duties associated with the company's or group of companies' financial, payroll, accounting and taxation matters.

In denying the petition, the Director did not specifically address the Beneficiary's stated job duties, but rather determined that the stated duties were "not consistent with the current scope and development of your company in the United States." The Director acknowledged the Petitioner's assertion that the Beneficiary's role as company controller would require him to direct and manage finance and accounting functions for a group of companies in the United States as well as continued oversight of its Venezuelan affiliate's finance and administration department and its three employees. However, the Director found inconsistencies in the record and insufficient evidence overall to support the interrelated nature of the companies' operations.

The Director later issued a request for evidence (RFE). The Director advised the Petitioner that the initial evidence did not demonstrate how its current scope and structure could support an L-1A employee who performs primarily managerial or executive duties. The Director noted that some of the documentation submitted suggested that the Beneficiary would be acting on behalf of a group of companies, but noted that the evidence did not substantiate or corroborate these claims with documentary evidence. As such, the Director advised that the Beneficiary's role within the larger group of companies had not been established.

Here, the Petitioner has stated that the Beneficiary supervises six professionals, including two employees of the petitioning company, one employee who works for its U.S. affiliate, and three employees who work for its Venezuelan affiliate. With respect to the U.S. employees, while the Petitioner indicated that two of the three positions require a bachelor's degree or its equivalent, it later stated that only one of the employees, the finance administrator actually obtained at least a bachelor's degree. Moreover, the duties attributed to this position, including preparing payroll and handling accounts payable and receivable, did not clearly require completion of a bachelor's degree. The Petitioner provided two completely different position descriptions for position of accounting coordinator without providing an explanation and also submitted evidence indicating that he is acting as an "HR Supervisor."

While a function manager is not required to directly supervise subordinate staff, the Petitioner claims that the Beneficiary supervises six staff located in the U.S. and abroad, and that these individuals perform non-qualifying duties associated with accounting, taxation, and payroll, leaving the Beneficiary free to primarily manage these essential function for the group of companies. However, we note that the Petitioner initially described the function in narrower terms, as it stated at the time of filing that the Beneficiary "will be responsible for the essential function of directing and managing the financial and accounting activities of our US Corporation." The record does not establish how the three U.S.-based employees would relieve the Beneficiary from performing the non-qualifying duties associated with this function as the Petitioner initially indicated that two of the Beneficiary's subordinates. perform identical, and limited duties, associated with payroll and accounts payable and receivable, while the other employee performs mostly administrative tasks. The Petitioner has submitted three job titles and two very different position descriptions for __ and we are not in a position to determine what his role is.

Further, as discussed, the record contains inconsistent information ' regarding the Beneficiary's oversight of the Venezuela-based finance and administration team and does not support a claim that the foreign staff will support the Beneficiary in carrying out his duties for the Petitioner or its U.S. affiliates. We acknowledge that the Petitioner cites to Matter of Z-A- Inc., (Adopted Decision 2016-02) (AAO Apr. 14, 2016) in support of its claim that USCJS must consider evidence of a Beneficiary's role within the wider qualifying organization, and consider the reasonable needs of the organization as a whole, including any related entities within the qualifying organization. However, we agree with the Director's finding that the evidence here does not establish that the foreign entity's finance and administration employees relieve the Beneficiary from performing non-qualifying duties associated with the activities he is claimed to manage in the United States, or that the financial operations of the Petitioner and its Venezuelan affiliate are intertwined and under the Beneficiary's authority. As noted, the initial evidence showed that the Beneficiary's claimed foreign subordinates report to an administration manager and to a finance director, not to the Beneficiary
____________________________________________________________________________________

AAO’s Decision Date: 02/28/2017

Matter of H-Z-B-C-C- Ltd., ID# 191433 (AAO Feb. 28, 2017)

Appeal of L-1A Intracompany Transfer of Executive and Managers, Form I-129, Petition for a Non-Immigrant Worker

Foreign Country: China

Type of Company: An importer and wholesaler of perfume and cosmetics

Type of Employment/Job Title: General Manager

New Office or Existing Office: Extend L-1A

Number of Employees: 5

Service Center: Vermont

Decision: The appeal is summarily dismissed.

Site Link: https://www.uscis.gov/sites/default/files/err/D7%20-%20Intracompany%20Transferees%20(L-1A%20and%20L-1B)/Decisions_Issued_in_2017/FEB282017_02D7101.pdf

Issues & Facts:

The Director concluded that the evidence of record did not establish that: (1) the Beneficiary had at least 1 continuous year of full time employment abroad with a qualifying organization within the 3 years preceding the filing of the initial L-1 petition on his behalf; and (2) the Beneficiary would be employed in a managerial or executive capacity under the extended petition.

The Petitioner, a Chinese entity, claimed that it employed the Beneficiary as its chief executive officer from February 2011 until December 2012, at which time he began working for its U.S. subsidiary in L-1 A status. The record of proceeding reflects that during the vast majority of this claimed period of foreign employment, the Beneficiary was either residing in Canada on a student visa or residing in the United States on a B1/B2 nonimmigrant visa. The Petitioner stated that the Beneficiary was physically present in China for only 3 months, from November 16, 2011, until February 20, 2012, during his entire claimed tenure as its CEO.

With respect to the Beneficiary's period of residence in Canada, the Petitioner has not explained how the Beneficiary maintained a full-time position as the CEO of the Chinese company while attending school as an undergraduate student on a different continent. While the Petitioner submitted an assortment of company documents bearing the Beneficiary's signature, and documents indicating that he was present at management meetings during his 3 months in China, it has not provided sufficient evidence of his day-to-day involvement in or oversight of the foreign entity's operations to support a finding that he was a full-time employee of the company.

In addition, based on a Canadian work permit in his passport, it appears that the Beneficiary, in addition to working towards completion of his undergraduate studies, was authorized to work at his community college in which casts further question on his ability to maintain a full-time job overseeing the operations of a company located in China.

With respect to the period of time the Beneficiary spent in the United States as a visitor, we note that brief trips to the United States for business or pleasure shall not be interruptive of the 1 year of continuous employment abroad but such periods shall not be counted toward fulfillment of that requirement. 8 C.F.R. § 214.2(1)(1)(ii)(A). Therefore, the Beneficiary cannot be considered a full time employee of the petitioning Chinese company during the period between his admission as a Bl/B2 visitor on June 5, 2012 and the filing of the initial L-IA petition on November 30,2012.

Finally, we note that U.S. Department of State records show that when the Beneficiary applied for his B1/B2 visa at the U.S. Consulate in ___ in December 2011, he stated on his visa application that he had never been employed. While we are not making an adverse determination based on this information obtained from the U.S. Department of State, the Petitioner may need to address the Beneficiary's statements regarding his employment abroad in any future petition tiled by the Petitioner on his behalf.
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Synopsis of L-1A AAO Decisions for 02/2017


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Synopsis of Administrative Appeals Office (AAO) L-1A Case Decisions for February 2017

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