U.S. Citizenship and Immigration Services

MATTER OF P-S-, INC.

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: APR. 1, 2016

PETITION: FORM I-129 PETITION FOR NONIMMIGRANT WORKER

The Petitioner, an IT services provider, seeks to temporarily employ the Beneficiary as its Account Manager and Technical Lead of Business Development under the L-1A nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the Act) § 101(a)(l5)(L), 8 U.S.C. § 1101(a)(l5)(L). The L-1A 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 an executive or managerial capacity.

The Director, Vermont Service Center, denied the petition. The Director concluded that the evidence of record did not establish that the Beneficiary would be employed in a managerial or executive capacity.

The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and asserts that the Director erred by denying the petition based on a lack of current U.S. employees, emphasizing that one of the reasons for the Beneficiary's transfer is to expand its staffing levels in the United States.

Upon de novo review, we will dismiss the appeal.

I. LAW

To establish eligibility for the L-1 nonimmigrant visa classification, the Petitioner must meet the criteria outlined in section 101(a)(l5)(L) of the Act. Specifically, a qualifying organization must have employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one continuous year within three years preceding the beneficiary's application for admission into the United States. 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, executive, or specialized knowledge capacity.

The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129 shall be accompanied by:

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(i) Evidence that the petitioner and the organization which employed or will employ the alien are qualifying organizations as defined in paragraph (1)(1 )(ii)(G) of this section ..

(ii) Evidence that the alien will be employed in an executive, managerial, or specialized knowledge capacity, including a detailed description of the services to be performed.

(iii) Evidence that the alien has at least one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing of the petition.

(iv) Evidence that the alien's prior year of employment abroad was in a position that was managerial, executive or involved specialized knowledge and that the alien's prior education, training, and employment qualifies him/her to perform the intended services in the United States; however, the work in the United States need not be the same work which the alien performed abroad.

II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY IN THE UNITED STATES

The sole issue addressed by the Director is whether the Petitioner established that it will employ the Beneficiary in a managerial or executive capacity. The Petitioner has consistently asserted that the Beneficiary will be employed in a managerial capacity and does not claim that he will be employed as an executive.

Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an assignment within an organization in which the employee primarily:

(i) manages the organization, or a department, subdivision, function, or component of the organization;

(ii) 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;

(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

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(iv) exercises discretion over the day to day operations of the activity or function for which the employee has authority. A first line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional.

If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, USCIS must take into account the reasonable needs of the organization, in light of the overall purpose and stage of development of the organization. Section 1 01 (a)( 44 )(C) of the Act.

A. Evidence of Record

The Petitioner filed the petition on July 8, 2015. The Petitioner stated on the Form I-129 that it is an IT services provider with one employee and a gross annual income of $304,063. It seeks to employ the Beneficiary as its Account Manager and Technical Lead in Business Development.

In a letter dated May 6, 2015, the Petitioner stated that the Beneficiary would be responsible for account management and new business acquisition as the company seeks to expand its operations in the Colorado region. The Petitioner described the Beneficiary' s proposed duties as follows:

1) Account management activities such as attend client meetings as needed to ensure client expectations are maintained; play a critical role in the contract renewal process and client retention strategy; bring in new contracts for staff augmentation; set up meetings between client decision makers and company' s practice leaders/principals; present an image that mirrors that of the client; perfom1 pro-active sales activities to convert targets to prospects and then to new account openings and business expansion within current customer base.

2) Work closely with [the Petitioner' s] management team to acquire new business with other e-discovery and retail domain customers.

3) Talent acquisition for US office expansion. Provide technical recruiting assistance.

4) [Company] tools and technology training for new hires.

5) Create sales presentations, marketing messages, position statements and compelling value propositions.

The Petitioner submitted an undated organizational chart which lists a Board of Directors, a CEO/President, a Vice President of Corporate Affairs a manager , and the Beneficiary. The Petitioner stated that the Beneficiary will repmi to both and the manager and did not identify any employees subordinate to the Beneficiary.

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(b)(6)

Matter of P-S-, Inc.

The Petitioner submitted a copy of its IRS Form 1120, U.S. Corporation Income Tax Return, which shows that the company paid $27,083 in compensation of officers and $0 in salaries and wages in 2014. The Petitioner also provided a copy of its "Marketing Agreement" with in which agreed to promote the Petitioner's IT training program for the visually impaired in the U.S. market through indirect marketing techniques.

On May 26, 2015, the Director issued a request for evidence (RFE) advising the Petitioner that the initial evidence was insufficient to establish that the Beneficiary would be employed in a managerial or executive capacity. The Director noted that the Petitioner submitted a vague position description that did not explain what types of duties the Beneficiary would perform on a daily basis. The Director also noted that the Petitioner stated on its Form I-129 that it employed one worker and did not explain who will be responsible for the non-qualifying operational tasks of the business.

In response, the Petitioner submitted a letter providing additional details regarding the previously enumerated duties. The RFE response stated that the Beneficiary's position in the United States is in a managerial capacity and would involve the following duties:

35% Account Management of current clients Responsible for maintaining all the existing contracts. Serve as liaison between [the Petitioner] and its clients, ensuring excellent customer service and client satisfaction. Responsible for managing client relationships, developing account plans, and delivering proposals for new business opportunities within all divisions of current clients. Assists the business meet sales and revenue goals. Design plans to achieve these goals and create strategies to combat potential revenue losses. For effective operation, this job also requires to travel to meet with clients and address any immediate concerns or queries.

25% Business development assistance Build market position by locating, developing, defining, negotlatmg, and closing business leads created by partners. Attend various industry seminars and identify trendsetter ideas by researching industry related events, publications, and announcements. Locates or proposes potential business deals by contacting potential partners. Screen potential business deals by analyzing market strategies, deal requirements, potential, and financials. Develop negotiating strategies and positions by studying integration of new venture with company strategies and operations; examining risks and potentials; estimating partners' needs and goals. Close new business deals by coordinating requirements; developing and negotiating contracts; integrating contract requirements with business operations. Create presentations to inform potential or existing clients about [the Petitioner's] products and services. Inform India based management team of new contacts and new marketing opportunities.

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(b)(6)

Matter of P-S-, Inc.

1 0% Knowledge transfer to India based teams This involves transfer of competencies essential to job performance in order to preserve the intellectual capital of the organization. This would help assist us with creating more flexibility in the workforce in maintaining projects and acquiring new ones. This would also be helpful for [the Petitioner's] (India) employees with a wider diversity of skills ....

30% Technical recruiting in US This involves the ability to realistically source, screen, and present qualified candidates. Understand technology, technical roles and technical skills. Identify, sourcing and uncovering candidates. Ascertaining the competence of candidates against a technical job description. Interviewing candidate by meeting candidates in person, telephone, or video conference to assess their qualifications.

In addition to the hiring process, [the Beneficiary] would also have the authority to fire or recommend those as well as similar personnel actions based on the performance of the employees supervised by him. Since he is performing these duties in India, his managerial skills contribute to the similar development of the personnel in the US.

The Petitioner stated that VP of Corporate Affairs in the US takes care of all day to day activities of the business including all the administrative duties and shareholder relations."

The Petitioner also submitted an organizational chart. The chart lists the CEO/COO overseeing U.S. operations. is depicted as overseeing the Beneficiary and one additional employee,

The Petitioner submitted a copy of IRS Form W-2, Wage and Tax Statement, for 2014 showing that she earned $27,083. The Petitioner also provided a copy of its Independent Contractor Agreement with , which indicates that he was retained "to market and sell [the Petitioner's] software testing services to potential customers throughout the United States on a full-time basis." The Petitioner did not provide evidence of any payments made to

The Petitioner further submitted copies of three IRS Form 1099, Miscellaneous Income, issued in 2014, showing that it paid $12,000 to an attorney, $27,000 to , and $7,742.29 to a

Finally, the Petitioner submitted a letter from its Indian subsidiary, dated June 18, 2015, stating that "[the Petitioner] is in the process of obtaining Hl visa(s] for two India based employees of [the foreign entity]. Once their transfer is done, [the Beneficiary] will oversee these employees and their work as well as customer facing interaction for processes and delivery in the US." The Petitioner

Matter of P-S-, Inc.

did not provide any additional information regarding these individuals or details regarding the nature of their proposed U.S. employment, such as their intended job titles or job duties.

The Director denied the petition on July 8, 2015, noting that the evidence submitted regarding the prospective position did not establish that the Beneficiary will primarily perform executive or managerial duties. The Director explained that the limited number of U.S. employees makes it questionable whether the Beneficiary will be able to primarily perform managerial functions. Finally, the Director acknowledged the Petitioner's claim that it was in the process of hiring additional U.S. staff; however, at the time of filing, there was not an established staff for the Beneficiary to oversee.

On appeal, the Petitioner contends that the Beneficiary will be responsible for managing two core functions of its business: account management and business development. The Petitioner explains that it intends to hire additional employees but cannot do so without an experienced manager, as new staff will require further training and continued supervision. The Petitioner also submits training certificates for individuals who completed a training course offered by the Petitioner, along with email correspondence regarding the training program.

In February 2016, the Petitioner supplemented its appeal with evidence that two individuals have received H-1B visas sponsored by the company. The Petitioner states that they are current employees of the foreign entity and will be arriving in the United States "soon" to join the Beneficiary's team.

B. Analysis

Upon review of the petition and the evidence, and for the reasons discussed herein, the Petitioner has not established that it will employ the Beneficiary in a managerial capacity. As noted, the Petitioner does not claim that the Beneficiary will be employed in an executive capacity.

When examining the executive or managerial capacity of the beneficiary, USCIS will look first to the petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). A petitioner's description of the job duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are either in an executive or managerial capacity. Id. A detailed job description is crucial, as the duties themselves will reveal the true nature of the beneficiary's employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a.ffd, 905 F.2d 41 (2d. Cir. 1990).

Further, the definitions of executive and managerial capacity have two parts. First, a petitioner must show that the beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (91

h Cir. July 30, 1991). Second, the petitioner must prove that the beneficiary will be primarily engaged in managerial or executive duties as opposed to ordinary operational activities among the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (91

h Cir. 2006); Champion World, Inc. v. INS, 940 F.2d 1533.

Matter of P-S-, Inc.

The Petitioner's initial position description was brief, but suggested that the Beneficiary would perform non-managerial sales, client services, technical training, and market research functions, while also holding the authority to recruit and hire staff. The Petitioner submitted a lengthier description of the Beneficiary's duties in response to the RFE which likewise suggested that the Beneficiary will spend a significant portion of his time engaged in non-qualifying operational tasks.

Specifically, the Petitioner states that 60% of the Beneficiary's time will be spent developing new business and attending to existing accounts. The duties enumerated indicate that the Beneficiary will actually be performing these sales and client management functions, not overseeing them. For example, the Beneficiary's responsibilities include: "Ensuring excellent customer service and client satisfaction," "managing client relationships, developing account plans, and delivering proposals for new business opportunities," "locating, developing, defining, negotiating, and closing business leads created by partners," "[a]ttend various industry seminars and identify trendsetter ideas by researching industry related events," "proposes potential business deals by contacting potential partners," and "analyzing market strategies, deal requirements, potential and financials." The detailed explanation of these responsibilities indicates that the Beneficiary would spend much of his time performing market research, sales, and client support functions that are not managerial in nature. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. While performing non-qualifying tasks necessary to produce a product or service will not automatically disqualify a beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner still has the burden of establishing that the beneficiary is "primarily" performing managerial or executive duties. Section 101(a)(44) ofthe Act.

The fact that the Beneficiary manages a component or department of a business does not necessarily establish eligibility for classification as an intracompany transferee in a managerial capacity within the meaning of section 101 (a)( 44) of the Act. By statute, eligibility for this classification requires that the duties of a position be "primarily" of an executive or managerial nature. Sections 101(A)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). While the Beneficiary may exercise discretion over the Petitioner's day-to-day client accounts and expansion efforts, the position description alone is insufficient to establish that his actual duties, as of the date of filing, would be primarily managerial in nature, as the evidence indicates that he will be solely responsible for non­qualifying aspects of these functions.

Beyond the required description of the job duties, USCIS reviews the totality of the record when examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors that will contribute to understanding a beneficiary's actual duties and role in a business.

The Petitioner asserts on appeal that the Beneficiary's position is in a managerial capacity. The statutory definition of "managerial capacity" allows for both "personnel managers" and "function managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) and (ii).

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Personnel managers are required to primarily supervise and control the work of other supervisory, professional, or managerial employees. If a beneficiary directly supervises other employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those actions, and take other personnel actions.

In this case, the Petitioner has not demonstrated that the Beneficiary will be employed as a personnel manager. The Petitioner stated on the Form I-129 that it had only one employee as of the date of filing. The record shows that this sole current employee is its Vice President for Corporate Affairs, the Beneficiary's direct supervisor. Despite indicating that this employee is the Beneficiary's manager, the Petitioner states that she will handle the non-managerial, day to day activities of the business including all the administrative duties and shareholder relations. However, it is unclear who will handle the day-to-day sales and client account management functions of the business that the Beneficiary will purportedly oversee. The Petitioner provided a copy of its agreement with

but did not provide evidence of payments made to him, identify the specific duties he performs, or even specifically state that the Beneficiary would supervise this independent contractor. In fact, the Petitioner did not include him on its initial organizational chart, and the organizational chart submitted in response to the RFE appears to show that reports to . not to the Beneficiary.

On appeal, the Petitioner provides evidence that it has provided training to students in the Colorado area, noting that it cannot hire them as employees until the Beneficiary is in place to manage them. The Petitioner does not provide further information regarding the types of roles the students would fill within the company. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)).

The Petitioner also mentioned two planned H -1 B hires and stated that these employees would report to the Beneficiary, but once again did not submit evidence related to these hiring plans or identify the positions these employees would hold or the duties they would perform. As noted, subsequent to filing the appeal, the Petitioner submitted evidence that it has sponsored H -1 B visas for two individuals. While this evidence does support the Petitioner's claims that it intends to grow the organization, without specific descriptions of the job titles and job duties of these individuals, we cannot conclude that they will relieve the Beneficiary from performing the day to day administrative and operational tasks that the Petitioner claims he will oversee. Furthermore, the Petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must continue to be eligible for the benefit through adjudication 8 C.F .R. § 103 .2(b )(1 ). A visa petition may not be approved at a future date after the Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978).

Based on the lack of evidence of sufficient staff in place to assist the Beneficiary with his account management and business development duties, we cannot conclude that the Petitioner has staff to relieve him from performing the non-qualifying operational and day-to-day sales, marketing and

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customer service duties. While the duties submitted do indicate that the Beneficiary will be responsible for technical recruiting and personnel actions, without those employees in place, it is unclear how the Beneficiary will perform the duties of a personnel manager. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. We cannot find that the Beneficiary would supervise a subordinate staff of managerial, supervisory or professional employees as of the date of filing, and as such he does not qualify as a personnel manager.

The Petitioner has also not established that the Beneficiary will be employed as a function manager. The term "function manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) ofthe Act. The term "essential function" is not defined by statute or regulation. If the Petitioner claims that the Beneficiary will be managing an essential function, the Petitioner must clearly describe the duties to be performed in managing the essential function, i.e. identify the function with specificity, articulate the essential nature of the function, and establish the proportion of the Beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, the Petitioner's description of the Beneficiary's daily duties must demonstrate that the Beneficiary will manage the function rather than perform the duties related to the function.

The Petitioner states on appeal that it is "expanding its business in the Denver region and the Beneficiary would be solely responsible to build it up ... new business development within existing US accounts and new customer accounts is an essential need for company growth. Account Management and Business Development are two core essential functions of our organization." The fact that the Beneficiary has authority over some functions of the business does not establish that he qualifies as a function manager. While such authority is consistent with the statutory definition of managerial capacity, it is not sufficient to establish that the Beneficiary is employed in a managerial capacity. Whether the Beneficiary is a "function" manager turns in part on whether the Petitioner has sustained its burden of proving that his duties are "primarily" managerial. Again, the actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. at 1108. Here, for the reasons discussed above, the Petitioner has not established that the Beneficiary's actual duties would be primarily within a managerial capacity. Most of the duties included in the Beneficiary's job description are related to the actual marketing, sales and service functions of the organization rather than managerial duties, and the Petitioner has not established that it has employees or contractors to relieve the Beneficiary from direct involvement in sales, marketing and client activities.

For the foregoing reasons, the Petitioner has not established that the Beneficiary will be employed in a managerial or executive capacity, and the appeal will be dismissed.

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III. CONCLUSION

The petition will be denied and the appeal dismissed for the above stated reason. 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofP-S-, Inc., ID# 16211 (AAO Apr. 1, 2016)

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