dismissed L-1A Case: Auto Parts

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF.S-CPA-P-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 7, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A ~ONIMMIGRANT WORKER 
· The Petitioner, an auto parts company, seeks to temporarily employ the Beneficiary as its president 
under the L-1 A nonimmigrant classification for intracompany transferees . 1 Immigration and 
Nationality Act (the Act) section 101(a)(l5)(L) , 8 U.S.C. § 110l(a)(l5)(L). The L-lA classification 
allows a corporation or qther legal entity (including its affiliate or subsidiary) to transfer a qualifying 
foreign employee to the United States to Work tempornrily in a managerial or executive capacit y. . · 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that it would employ the Beneficiary in a managerial or executive 
capacity. 
On appeal , the Petitioner submits additional evidence in support of its claim t_hat the Beneficiary will 
be employed in an executive capacity and contends that · the Director failed to consider the 
petitioning organization's reasonable needs and overall stage of development 
Upon de nova review , we will dismiss the appeal. 2 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification , a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial , executive , or involves specialized 
knowledge ," for one continuous year within three years preceding the beneficiary ' s application for 
admission into the United States. Section 10l(a)(l5)(L) of the Act In addition , the beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. The 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved ·for the period 
October 5, 2016, until October 5, 2017. A "new office" is an organization that has been doing business in the United 
States through a parent, branch, affiliate, or subsidiary for less than one year. 8 C.F.R. § 214.2(1)(1 )(ii)(F). The 
Petitioner subsequently filed a second petition to request an extension of the new office petition, 
which the Director denied in January 2018. . · . 
2 , The record reflects that the Petitioner submitted a new, properly executed Form G-28 on appeal. Therefore, we will 
recognize , the attorney who submitted the properly executed Form G-28, as the attorney of record in this 
proceeding. 
Matter ofS-CPA-P-, Inc. 
petitioner must also establish that the beneficiary's prior education, training, and employment 
qualify him or her to perform the intended services in the United States. 8 C.F.R: § 214.2(1)(3) . 
. II. U.S. EMPLOYMENT lN AN EXECUTIVE CAPACITY 
The Director denied the petition based on a finding 'that the Petitioner did not· establish that the 
Beneficiary will be employed in a managerial or executive capacity. However, the Petitioner does 
not claim that the Beneficiary will be employed in a managerial capa~ity, and we will restrict our 
. a.11alysis to whether he will be employed in an executive capacity. 
The term "~xecutive capacity" is defined as an assignm~nt within an organization in which the 
employee primarily directs the management of the organization or a major component or function of 
the organization; establishes the goals and policies of the organization, component,· or function; 
exercises wide latitude in discretionary decision-rnaking; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section _101(a)(44)(B) of the Act. 
When examining the executive capacity. of a given beneficiary, we will look to the petitioner's 
description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of the 
job duties, we examine the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding a beneficiary's actual duties and role in a business .. 
Accordingly, we will discuss evidence regarding the ~eneficiary's job duties alpng with evidence of 
the nature of the Petitioner's business, its s_taffing levels, and its organizational structure . 
. A. Duties 
Based on the definition of executive capacity, the Petitioner must first show that the Beneficiary will 
perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 
1991) (unpublished table decision). Second, the Petitioner must prove that the Beneficiary will be 
primarily ·engaged in executive duties, as opposed to ordinary operational activities alongside the 
Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d at 1533. 
At the time of filing, the Petitioner submitted the following description of the Beneficiary's proposed 
duties as president: · 
• Formulating short- and long-term policies, goals, strategies, procedures and 
programs to ensure the continuous growth and profitability of the business with 
minimum oversight from the Board of Directors ... (10%) 
2 
Matter ofS-CPA-P-, Inc. 
• Planning and directing the company's financial, governance, and commercial 
operations at the highest level of management . . . with the help of subordinate 
managers and professionals (10% ); · · 
• Exploring and identifying the need for further investment and reporting to 
shareholders (5%); 
• Coordinating international strategic planning with the Venezuelan affil_iate (5%); 
• Negotiating with banks and vendors and suppliers of products and services to 
ensure the most favorable terms and conditions (5%); · 
• . Coordinating the setting of ac_curate budgets for administration and marketing and 
monitoring these on a-biweekly basis (10%); 
• Hiring and overseeing the company's management team and delegating supervision 
to this team of subordinate staff ( I 0% ); . 
• Legally representing the company, having authority to bind it in contract and acting 
as the corporate bank account signatory (5%); 
• Determining with sharel}olders a marketing and promotion strategy and, if 
necessary, entering into agreement with a marketing company (5%); 
• Ensuring managers and staff members maintain high business standards (3%) 
• Supervising and exercising direction over subordinate e111ployees and contractors 
who perform the day-to-day work with authority to hire and fire the employees 
(12%); 
• Monitoring staff performance through annual evaluations and ensuring highest level 
of customer/client service ( 15% ); and 
• Analyzing strategic alliances that will contribute to [the Petitioner's] growth and 
profitability (5%). 
The Petitioner further stated that the Beneficiary would be responsible to "develop a new local 
market in the United States to purchase cars and tow them to [the Petitioner's] lot for parts usage," 
which would require further investment, in tow trucks. The Petitioner noted that the _ Beneficiary 
would be spending approximately 15% of his time on planning for this venture and arranging for its 
financing, and would adjust the a1:1ount of time spent on his remaining duties accordingly., 
In a request for evidence (RFE), the Director acknowledged the submitted description, and advised 
the Petitioner that it did not sufficiently describe the specific tasks the Beneficiary would perform on 
a day-to-day basis. In response, the. Petitioner submitted a new letter which re-stated the same job 
dutfos that the Director had already reviewed and found to be deficient. 
We agree with the Director's finding that this description does not delineate the Beneficiary's 
proposed duties with sufficient clarity, nor does it describe his actual tasks ~ithin the context of the 
Petitioner's business, which it describes in the record as "used auto parts and scrap metal recycling." 
The Petitioner noted that the Beneficiary will formulate the coinpany's ."policies, goals, strategies, 
procedures and programs," plan and direct its operations, engage in strategic planning, serve as the 
company's legal representative,.anq report to the shareholders and Board of Directors. These types 
of overly broad statements appeared throughout the description but do not define concrete.job duties 
or explain what specific tasks would occupy the Beneficiary's time. Specifics _are clearly an 
Matter ofS-CPA-P-, Inc. 
important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would• simply be a matter of reiterating the regulations. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108-(E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 
1990). Further, we note that the Beneficiary himself is the sole shareholder of the Petitioner's parent 
company; which wholly owns the Petitioner. This fact raises questions about what his meetings with 
"shareholders" would entail. 
In addition,· some of the other duties assigned to the Beneficiary are repetitive and· it is unclear why 
they have been listed as separate and discrete responsibilities. For example, the Petitioner states that 
he will devote _ 10% _ of· his time to hiring and overseeing a management team and delegating 
supervision; 12% of his. time to supervising and exercising direction over subordinate employees, 
with authority to hire and fire staff; 15% of his time monitoring .~taff performance; and 3% of his 
time ensuring managers and staff members "maintain high business standards. While we do not 
doubt that he would have the authority to hire and supervise staff, it is difficult to <;iiscem how much 
time he would actually allocate to these functions . 
. Overall, the list of job duties the Petitioner submitted in support of the petition and in response to the 
RFE (which it now submits for a third time on app'eal)."conveys the Beneficiary's authority over the 
Petitioner's business, but does not clarify what he will do as part of his daily routine. ·The Petitioner 
emphasizes the Beneficiary's development of policies, strategies, and performance of higher level 
planning and decision-making activities, but does not provide sufficient information to support· a 
finding that. he would focus primarily on these duties. Reciting the Beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the Beneficiary's daily job duties."· The actual duties themselves will reveal the true 
nature of the employment. Fedin Bros., 724 F. Supp. at 1108, ajfd, 905 F.2d 41 (2d. Cir. 1990). 
We acknowledge that, on appeal, the Petitioner attempts to clarify the Beneficiary's duties by 
providing an example of how he carries out one of his stated responsibilities. Specifically, the 
Petitioner states that he will "implement short- and long-term strategies by researching and vetting 
potential markets in countries to decide whether or not [the Petitioner] should invest in those 
markets." The Petitioner goes on to state that once the Beneficiary decides to pursue an opportunity 
in a new market he "makes contact with potential clients and negotiates the most favorable terms and 
conditions for new contracts and executes them." The Petitioner further explains that the 
Beneficiary's subordinates would make sure that the terms of the contracts are carried out by 
handling "day-to-day activities." However, the Petitioner does no.t explain how researching and 
vetting potential markets or reaching out to potential cli_ents qualify as executive-level duties, nor 
does it specify how much time he would spend on such activities. 
The fact that the Beneficiary will direct the business as its senior employee does not necessarily 
establish eligibility for. classification as an intracompany transferee in an executive capacity within 
the meaning of section 101 ( a)( 44 )(B) of the Act. As discussed further below, we cannot determine 
to what extent the Beneficiary's su~ordinate employees would assist him with non-executive tasks 
required to operate the business, and the record does not sufficiently support the Petitioner's claim 
4 . 
.
Matter ofS-CPA }P-, Inc. 
that he will spend his time primarily on higher~level planning, strategy, and decision-making 
activities. 
B. Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, we take into account the reasonable needs of the organization , in light of the 
overall purpose and stage of development of the organization. See section 10l(a)(44)(C) of the Act. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies" of that organization. Inherent to the definition , the Beneficiary must 
primarily focus on the broad goals and policies of the organization rather than the day-to-day 
operations of the enterprise. An individual will not be deemed an executive under the statute simply 
.because they have an executive title or because they "direct " the enterprise as the owner or sole 
managerial employee . 
According to a submitted business plan, the Petitioner operates as a wholesaler of new and used auto 
parts, servicing retailers in the United States , and it also exports auto parts to South America, Central 
America, and the Caribbean. The record also mentions a scrap metal recycling line of business, and 
there is evidence that the Petitioner's 42,000 square foot premises include a yard or lot for cars (as 
well as a car crusher), a warehouse, and an office . 
On the Form I-129, Petition for a Nonimmigrant Worker , the Petitioner stated that it had six 
employees at the time of filing in April 2018 and the c·ompany ' s payroll records confirm this 
number. The Petitioner's organizational chart shows a total of ten employees, including four 
employees who were not on its payroll when the petition was filed: the Beneficiary, . an 
administrative assistant, an operations manager, and a warehouse/maintenance worker. The 
Petitioner explained that the Beneficiary and the administrative assistant (his spouse) would be 
reinstated a:s employees upon approval of the petition , once they are au~horized to work again. The 
Petitioner also stated that the operations manager had been 'on maternity leave for all of 
2018 (through September) but did not provide a date for her return. 3 The Petitioner must establish 
that all eligibility requirements for the immigration benefit have been satisfied from the time of the 
filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
I 
Therefore , the Petitioner's documented staff at the time of filing included the following six workers: 
Wareho'use Manager 
Warehouse Assistant Manager (2)-
3 The record does not contain evidence of wages paid to the "warehouse worker" or "maintenance worker" 
whose name appears on the submitted organizational charts. 
5 
. ) 
Matier ofS-CPA-P- , Inc. 
Operations & Logistics Manager - (acting for 
Purchasing & Sales Manager -
Purchasing/Sales Executive (2) - and 
The Petitioner's organizational chart also showed vacancies for a marketing specialist, a business 
relations specialist , and an IT technical support employee , and identified a contracted accountant and 
attorney who would report to the Beneficiary. 
The Petitioner provided descriptions for the pos1hons of warehouse manager, operations and 
. logistics manager, and purchasing and sales manager, as well as resumes for the employees claimed 
· to hold these positions. 
The Petitioner stated that the operations and logistics manager: "ensures conformance of company 
operations to all applicable laws and regulations" ; establishes "short- and long-term operating and 
1 . 
financial · objectives for the Parts Department "; ensures "company growth projections , sales 
objectives and desirable profits are consist ently met"; works with the sales manager to ensure 
maximum profit and parts turnarnund ; analyzes the auto parts indust~y and marketplace to analyze 
new opportunities ; exercises discretion over hiring and firing lower level employees; establishes and 
maintains a training program; exercises managerial discretion · over the day to day operations ; 
supervises and evaluates personnel; and reviews and approves financial reports for submission to the 
president. 
The Petitioner submitted a resume for , the holder of this position who was claimed to be 
on maternity leave at the time of filing . She describes her duties as "operations and logistics 
manager " as follows (note: errors in the original text have not been changed) : 
This is inspected to monitor or organize the patio, supervises each employee 
functions, seeks the way to keep the patio sanected, since the type of employment 
both many liquids and you have to keep clean and operative the same, it is necessary 
for the environmental part and for the appliances that are used in the patio, for 
example the forlink maintain a safe and active space helps us to process optima 
resume listed a few previous sales positions , a position as a machine operator, and no 
educational background. We cannot determine that the position she describes in the resume is the. 
same position the Petitioner has described in its letters. While we acknowledge that the duty 
description in the resume likely contains translation errors , the duties do not appear to be remotely 
similar to the higher level managerial tasks the Petitioner attributed to the position . Therefore, we 
·find that the Petitioner's description of the operations manager's duties is lacking in probative value. 
The. Petitioner indicates that the purchasing and sales manager . . is responsible for: 
conducting call projects focused on growing the business in the U.S. and South America ; collecting , 
anal yzing and loading customer data into the CRM system ; answering questions on products and 
distribution, and providing recommendations; proactively calling existing customers to research 
needs and maintain relationships ; interfacing with distributers and buyers; and promoting specials 
6 
.
Matter of S-CPA-P- , Inc. 
via inside sales call projects . Based on this description , the purchasing and sales· manager would be 
primarily performing routine sales duties. resume states · that his position with the 
Petitioner is "Auto Parts Sales Supervisor and Inventory," but does not list any job duties. The 
Petitioner did not explain why he would he used a different job title in his resume ; 
Finally, the Petitioner indicated that the warehouse manager would report directly to the 
Beneficiary and perform the following duties: comply with federal , state and local warehousing, 
material handling and shipping requirements by studying existing and new legislation and enforcing 
adherence to requirements ; safeguarding warehousing operations by establishing security 
procedures; controlling inventory levels by conducting physical counts and reconciling with data 
storage system; maintaining physical condition of warehouse by planning and implementing new 
design layouts, inspecting equipment and issuing work orders; achieving financial objectives by 
preparing an annual budget and analyzing variances ; scheduling and assigning warehouse employees 
to complete operational requirements; recruiting , selecting, and training warehouse assistants; 
working with warehouse assistants to search nationwide to find the best possible auto parts deals; 
and determining appropriate inventory levels . 
The Petitioner provided a copy of resume , in which he indicates that he completed 
ninth grade, that he currently works for the Petitioner as a "Car Dismantler ," and that he previously 
held the same position with another company from 2011 until 2015. The Petitioner did not submit 
an explanation for this discrepancy in his job title and did not establish that he is actually performing · 
the duties attributed to the "warehouse manager." 
Based on the unresolved discrepancies between the Petitioner's descriptions of the Beneficiary's 
subordinates and the information provided on the submitted resumes for these individuals , we find 
insufficient evide~ce to establish tha~ the emplo yees are actually performing the claimed job duties . 
. The Petitioner must resolve these inconsistencies in the record with independent , objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. · 582, 591-92 (BIA 1988). 
Further, as noted, the Petitioner did not have the Beneficiary or the administrative assistant on its 
payroll at the time of filing. The Petitioner submitted a letter from stating that he has 
been performing the duties of both the operations manager and purchasing and sales manager 
positions throughout 2018 , but he does not explain how he manages to fully perform two different 
full-time positions in a 40 hour workweek. In addition , the Petitioner did not explain what duties are 
1 performed by its two "warehouse assistant managers" or by the two "purchase/sales executives ," and 
it did not provide eviderice of any wages paid to its lower-level warehouse/maintenance worker. 
Therefore, although the Petitioner has documented its employment of a total of six employees , it has 
submitted a credible position description for, at most, only one member of its subordinate staff - the 
sales and purchasing manager - who, as noted , is described as performing sales duties , rather than 
acting in a supervisory or managerial capacity as his title suggests . A petitione_r's evidence must 
substantiate that the duties of a beneficiary and his or her subordinates correspond to their placement 
in an organization's structural hierarchy; tiers of subordinate employees and job titles alone are not 
probative and will not establish that an organization can sufficiently support an executive position . 
1 
. ( 
Matter ofS-CPA-P~, Inc. 
I:Iere, based on the. limited information provided regarding the Beneficiary's actual duties, and the 
lack of probative inf01:mati01i regarding the duties performed by the company's other employees, we 
cannot determine that the company has sufficient staff to relieve the Beneficiary from engaging in 
operational and other non-executiv,e tasks. 
• I 
The Petitioner cites Nat 'l Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.5 (5th Cir. 1989) to stand 
for the proposition that the small size of a petitioner will not, by itself, undermine a finding that a 
beneficiary will act primarily in a managerial or executive capacity. First, we note that the Petitioner 
has not furnished evidence to establish that the facts of the instant petition are analogous to those in 
Nat'! Hand Tool Corp., where the Fifth Circuit Court of Appeals decided in favor of the former 
Immigration and Naturalization Service (INS). In Nat 'l Hand Tool Corp., t~e court emphasized that 
the former INS should not place undue emphasis on the size of a petitioner's business operations 
when reviewing managerial or executive capacity. We have interpret the regulations and statute to 
prohibit discrimination against small or medium-size, businesses. · · 
However, consistent with both the statute and the holding of Nat 'l Han« Tool Corp., the Petitioner is 
required to·establish that the Beneficiary's position consists of primarily executive duties and that it 
will have sufficient personnel to relieve the Beneficiary from performing operational and/or 
administrative tasks .. Like the court in Nat 'l Hand Tool Corp., 889 F.2d at 1472, n.5., our holding is 
based on a conclusion that ·the Petitioner did not meet its burden to establish that the Beneficiary -
woyld be performing primarily executive duties and does not rest on the size of the Petitioner. 
Ori appeal, the Petitioner also cites to Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 
14, 2016), and asserts that the Director failed to consider the reasonable needs of the.Petitioner's 
international organization as a whole, and the Petitioner's current stage of development. The 
Petitioner notes that the Beneficiary holds the same executive position he held with the parent 
company, and emphasizes that he will be ''managing the essential executive duties associated with 
the development and expansion of the United States market for -the Petitioner's international 
. organization." Although the Petitioner stated that the Beneficiary will devote a small portion of his 
time to "coordinate international strategic planning" with the foreign parent company, the record 
does not. document any collaboration between the two companies, ·demonstrate that staff of the 
foreign entity support the U.S. company's. day-to-day operations, or establish that the Beneficiary is 
primarily responsible fo_r directing a function for the international organization. 
The fact that he oversees the U.S. subsidiary of the foreign entity 'is not sufficient to meet the 
Petitioner's burden to show that his actual duties would be executive in nature, or to establish that he 
will be primarily directing an essential function for the· larger international organization. 
Furthermore, the Petitioner bears the burden of documenting what portion of the Beneficiary's duties 
w_ill be executive and what proportion will be non-executive. See Republic of Transkei v. INS, 923 
F .2d 175, 178 (D.C. Cir. l 991 ) .. The Petitioner has not ,provided clear and credible breakdowns of 
the job duties to be performed by the Beneficiary and the company's other employees and therefor_e 
has not met this burden. · 
8 
Matter ofS-CPA-P-, Inc. 
In sum, the Petitioner has consistently stated that the Beneficiary will occupy the senior position in 
the company, but has not submitted a job description or supporting evidence sufficient to 
demonstrate that he would primarily perform executive duties consistent with section I 01 (a)( 44)(8) 
of the Act. 1 
III. CONCLUSION 
The appeal will be dismissed because the Petitioner did not establish that the Beneficiary will be 
employed in the United States in an executive capacity. 
. ORDER: The appeal is dismissed . 
Cite as Matter ofS-CPA-P-. Inc., ID# 2121999(AAO Feb. 7, 2019) 
9