dismissed L-1A Case: Automated Payment Systems

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-S-USA, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 28. 2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an operator of automated payment systems, seeks to temporarily employ the 
Beneficiary as the president and CEO of its new office under the L-1 A nonimmigrant classification 
for intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 
8 U.S.C. § 110l(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 a managerial or executive capacity. 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that it would employ the Beneficiary in the United States in an executive 
capacity within one year of approval of the petition. 1 
On appeal, the Petitioner submits a brief disputing the denial. The Petitioner states that the 
Beneficiary's proposed employment satisfies the statutory definitions of managerial and executive 
capacity and claims that it will be sufficiently staffed to relieve the Beneficiary from having to 
perform its operational tasks. 
Upon de novo review, we will dismiss the appeal. 
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. !d. 
1 
The Director initially denied the Petition based on a finding that the Petitioner did not establish that it had secured 
sufficient physical premises to house its new office. On appeal, we found that the Petitioner overcame the sole basis for 
denial, but determined that it had not established eligibility for the requested classification based on the evidence of 
record at the time. Therefore, we withdrew the Director's decision and remanded the matter for further review and 
issuance of a new decision. 
Matter of E-S-U~A. Inc. 
In order to qualify for L-1 A nonimmigrant classification during the first year of operations. the 
regulations require a petitioner to demonstrate that: it has secured sufficient physical premises to 
house its new office operation; the beneficiary was employed abroad in a managerial or executive 
capacity; and the proposed employment would involve executive or managerial authority over the 
new operation. The petitioner must also disclose the proposed nature of the business and the size of 
the U.S. investment, and establish that the proposed enterprise will support an executive or 
~ 
managerial position within one year of the approval of the petition. 8 C.F.R. § 214.2(1)(3 )(v)(C).~ 
The statute defines an "executive capacity" as an assignment 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-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 1 01 (a)( 44 )(B) of the Act. 
The statute defines the term "managerial capacity" as an assignment in which an employee primarily 
manages the organization, or a department subdivision, function, or component of the organization: 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization; has the authority to hire and fire or 
recommend those as well as other personnel actions, or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) ofthe Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
In the denial decision, the Director determined that the Petitioner did not establish that the 
Beneficiary would be employed in an executive capacity within one year of approval of the petition. 
Namely, the Director concluded that the Petitioner did not establish that it would progress beyond 
the startup phase of its operation within one year of tiling the petition such that it would have 
sufficient staff to relieve the Beneficiary from having to primarily perform non-executive job duties. 
The Director further found that the Petitioner provided an inadequate position description for the 
Beneficiary, and noted that there was an unresolved inconsistency with respect to the company"s 
intended reporting structure. 
On appeal, the Petitioner asserts that the Beneficiary's proposed position satisfies the statutory 
definition of executive capacity, and also states for the first time that the Beneficiary could 
alternatively be classified as a managerial employee. The Petitioner asserts that the Director placed 
2 
On appeal, the Petitioner erroneously cites to the regulation at 8 C.F.R. ~ 214.2(1)(14)(ii), which applies to a petitioner 
seeking to extend the validity of a petition that involved the opening of a new otlice. Here, the Petitioner is not seeking 
to extend a previously approved petition, but rather is requested an initial approval as a new office. 
2 
Matter of E-S-USA, Inc. 
too much emphasis on the projected small size of the company and did not consider the ""key 
function'· the Beneficiary will perform as president and CEO. 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job duties. The Petitioner's description of the job duties must clearly 
describe the duties to be performed by the Beneficiary and indicate whether such duties are in a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). The regulations recognize that a 
designated manager or executive responsible for setting up a new ot1ice·s operations may be 
engaged in a variety of activities that are not normally performed by employees at the executive or 
managerial level and that often the full range of managerial responsibility cannot be performed 
during this initial phase of operations. However, a petitioner is expected to provide evidence to 
demonstrate a realistic expectation that it will succeed and rapidly expand as it moves away from the 
developmental stage to full operations, where there would be an actual need for a manager or 
executive who will primarily perform managerial or executive duties. See Renerally, 8 C.F.R. 
214.2(1)(3)(v)(C). 
Accordingly, we will address the Beneficiary's proposed duties as well as the Petitioner's business 
plan, projected staffing levels, and other relevant evidence in order to determine whether the oftice 
would more likely than not support a managerial or executive position within one year. 
A. Duties 
Based on the statutory definitions of managerial and executive capacity, the Petitioner must first 
show that the Beneficiary will perform certain high-level responsibilities. Champion World. Inc. \'. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties within one year. 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 1533. 
In its initial supporting statement, the Petitioner indicated that the Beneficiary would be employed in 
an executive capacity, responsible for expanding. organizing, and developing the U.S. business and 
for overseeing ·'all operational aspects" of the company. The statement includes a breakdown of the 
Beneficiary's 22 "primary responsibilities" and the percentage of time he would allocate to each 
duty. These duties included: collaborating with the financial and administrative manager. an 
accountant, and an attorney to formulate strategies and policies and devise financial goals; 
maintaining authority over "other executives" as well as the company's purchasing, sales, customer 
service, and human resources; traveling to meet with customers and business partners; attending 
industry events to network and learn management trends; identifying and developing business 
opportunities; developing the company's marketing, sales, and investments; negotiating and 
executing contracts; and approving manufacturers. vendors, and suppliers. 
While the Petitioner claimed that the Beneficiary would approve agendas for shareholder meetings. 
which points to the Beneficiary's discretionary authority over corporate matters, the Petitioner's 
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Matter of E-S- USA. Inc. 
reference to shareholder meetings is unclear given the Beneficiary's position as the company's sole 
shareholder. Although the Petitioner does not indicate that the Beneficiary would allocate a 
significant amount of time to this duty, this anomaly raises questions about the overall accuracy of 
the job description, which highlights the Beneficiary's discretionary authority over corporate and 
business matters and his direction of executive employees. 
The Petitioner also provided a business plan, which states that, in addition to assessing marketing 
opportunities, the Beneficiary will be responsible for "gathering intelligence on customers and 
competitors, generating leads for possible customers and clients, and following up with sales 
activity." The Petitioner did not clarify whether the Beneficiary would continue to carry out these 
operational tasks beyond its first year of operation; however, it does not appear that such tasks have 
been assigned to the proposed subordinate positions. 
Further, while the plan stated that the Petitioner would provide various services to its clients. 
including data analysis and reporting and call center support, it does not indicate that it would hire 
statT to perform these duties during the first year of operations. In discussing its management and 
staffing projections, the business plan states that the Petitioner will .. assemble different disciplines. 
accomplished professionals with expertise in all areas of the business. including [ m ]arketing. 
[f]inance, IT [s]upport[,] and [l]ogistics." Although the business plan indicates that the Petitioner's 
"professional staff' will relieve the Beneficiary from having to perform the operational tasks, it does 
not explain who will provide the marketing and logistics services, which were not assigned to the 
three proposed positions the Petitioner intends to staff during the initial year. 
As noted, the Director initially denied the petition based on a difTerent ground of ineligibility and did 
not address the Beneficiary's employment capacity in the original decision. After we remanded the 
petition, the Director issued a request for evidence (RFE) informing the Petitioner that it did not 
provide an adequate job description for the Beneficiary's proposed employment in that it used 
general terminology and indicated that the Beneficiary would perform a number of non-managerial 
and non-executive job duties. The Director further noted that the job description contained in the 
Petitioner's supporting statement appears inconsistent with the list of duties attributed to the 
Beneficiary's position in the business plan. 
In response, the Petitioner provided an additional breakdown of the duties that will comprise the 
Beneficiary's "proposed executive position." The Petitioner listed the eight elements that would 
comprise the proposed position and provided the percentage and hourly time allocations assigned to 
each component. First, the Petitioner indicated that 20% of the Beneficiary's time would be spent 
working with the company's three in-house employees - financial and administrative manager. 
technical support supervisor, and the office supervisor - to oversee the company's financial. 
marketing, and sales activities. Not only does this statement neglect to clarify the specific duties the 
Beneficiary would perform during the course of his oversight, but it also leaves out a portion of the 
original job description where the Petitioner indicated that the Beneficiary would collaborate with 
outsourced professionals, including an accountant and an attorney. As in the original job 
description, the Petitioner generally stated that the Beneficiary would design and approve the 
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Matter of E-S-USA, Inc. 
company's strategic and operational plans. The Petitioner indicated that 10% of the Beneficiary" s 
time would be allocated to this element as opposed to the original 5% that was allocated to a similar 
set of duties in the original description. 
Next, the Petitioner broadly stated that 15% of the Beneficiary's time would be spent establishing 
relationships with "strategic partners and distributors," negotiating terms for pricing and shipping of 
the Petitioner's products, and developing prospective business. The Petitioner did not explain how 
these seemingly operational and sales-based activities should be classified as executive-level duties. 
The Petitioner went on to broadly state that the Beneficiary would develop corporate policies and 
"create performance review plans'' for 10% of his time, "[d]etermine the U.S. company's 
organizational chart, job descriptions, and authority levels'" for 10% of his time. and [ e ]nsure that the 
company matches its profit objectives" or another 10% of his time. While these statements indicate 
that the Beneficiary would have discretionary authority in all matters concerning the Petitioner's 
business, they are vague and do not reflect the specific duties that the Beneficiary would perform 
daily within the scope of a business that plans to operate and sell automated bill payment machines. 
On appeal, the Petitioner resubmits the job description provided in response to the latest RFE and 
provides a new job description in the form of an hourly sampling of a single work day in an effort to 
supplement the information it already provided. 
As with the prior job description submitted in response to the RFE, we find that the new job 
description contains ambiguities as to the Beneficiary's actual duties and is somewhat inconsistent 
with the job description that was originally submitted in support of the petition. The new job 
description does not state that the Beneficiary would oversee '·other executives,'" as was originally 
claimed and it does not expand on the Beneficiary's actual role with respect to the purchasing, sales, 
and customer service functions. The Petitioner also does not state who will carry out these 
operational functions and provides only general information about the Beneficiary's role in their 
execution. Although the original job description stated that the Beneficiary would develop the 
Petitioner's marketing, sales, and investments, the new job description does not expand on this 
broadly stated job duty. Reciting the Beneficiary's vague job responsibilities or broadly-cast 
business objectives is not sufficient; the actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), af("d, 905 
F.2d41 (2d. Cir. 1990). 
Further, the original job description indicated that the Beneficiary would be directly involved in 
marketing and selling the Petitioner's products. While the new job description indicates that the 
Beneficiary will "receive an updated report on the sales accomplished as well as discuss updates on 
product marketing," the Petitioner does not state who would actually be tasked with the sales and 
marketing functions. We therefore cannot rule out the possibility that the Beneficiary would 
perform both of these operational tasks, as indicated in the original job description. While no 
beneficiary is required to allocate 100% of their time to managerial-level tasks. the petitioner must 
establish that the non-qualifying tasks the beneficiary would perform are only incidental to the 
proposed position. An employee who "primarily'' performs the tasks necessary to produce a product 
5 
Matter of E-S- USA, Inc. 
or to provide services is not considered to be ''primarily" employed in a managerial or executive 
capacity. See sections 10l(a)(44)(A) and (B) ofthe Act (requiring that one ''primarily" perform the 
enumerated managerial or executive duties); see also Matter ol Church Scientology Int '1, 19 I&N 
Dec. 593, 604 (Comm'r 1988). 
The job descriptions are also inconsistent with regard to the Beneficiary's role in making 
investments. While the original job description indicated that the Beneficiary controls investments, 
the latest job description does not indicate that the Beneficiary would carry out job duties associated 
with investing. Regardless, the original job description did not provide specific information about 
the Beneficiary's actual duties with respect to investment of funds. Lastly, while the original job 
description indicated that the Beneficiary's responsibilities would include negotiating and executing 
contracts or approving manufacturers, vendors, and suppliers, the new job description did not make a 
similar claim. 
In addition to the inconsistencies listed above, the new job description on appeal contains a number 
of ambiguities that preclude us from gaining a meaningful understanding of the tasks the Beneficiary 
would perform within one year of filing the instant petition. First, while the Petitioner claims that 
the Beneficiary would meet daily with the financial and administrative manager to resolve issues 
concerning product shipments and to receive updates about sales and product marketing, it does not 
state who would sell and market the merchandise and who would actually engage in the logistics of 
arranging product shipment. As noted above, the Petitioner did not assign these operational tasks to 
any of the positions in its proposed support statT. Given that these tasks appear to be critical to the 
Petitioner's operations, it is not unreasonable to assume that the Beneficiary would be directly 
involved in selling and marketing the Petitioner's products and making arrangements with necessary 
third parties to deliver those products to the Petitioner's customers. 
Further, while the new job description on appeal indicates that the Beneficiary would also meet with 
the financial and administration manager to ''resolve any questions and problems the employees 
have" and address customer service issues, neither element can be readily classified as an executive­
level task; nor is it apparent that addressing employee concerns in a three-person staff would be a 
necessary component of the Beneficiary's daily or weekly practice as the time allocation suggests. 
The issue of the Beneficiary's direct involvement in overseeing lower-level employees arises again 
when we consider the Beneficiary's daily interaction with the technical operations supervisor to 
follow up on technical issues and equipment installation schedules and to resolve inventory-related 
concerns. If, as the organizational chart indicates, the financial and administration manager is in a 
supervisory role with respect to the technical operations supervisor, it is unclear why the Beneficiary 
would have to address concerns that are associated with the operational tasks of a lower-level non­
professional employee. This inconsistency further highlights the incongruity between the projected 
organizational chart and the Beneficiary's proposed job duties. 
The Petitioner also indicates that the Beneficiary would allocate his time daily to meeting with an 
outsourced accountant to resolve auditing issues, plan bill payment, analyze accounts payable and 
Matter of E-S-U<;.;A, Inc. 
receivable, and create a marketing budget. However, the Petitioner has not provided suflicient 
evidence to justify having daily or even weekly meetings with an outsourced accountant to address 
infrequent or intermittent events, such as undergoing audits or devising a marketing budget. The 
Petitioner projects that it will spend $4000 annually on ''bookkeeping:' which does not support the 
Petitioner's claim that the Beneficiary would meet daily with an outside accountant. 
Likewise, we question the likelihood that the Beneficiary would hold daily meetings with outside 
legal counsel to resolve licensing or compliance issues, "address any legal ramifications" with late­
paying customers, or review trademark or intellectual property issues. The Petitioner does not 
explain what licensing issues and intellectual property concerns it expects to encounter routinely 
within the context of its business to warrant the Beneficiary's daily or even weekly meetings with 
outside legal counsel. Moreover, the Petitioner's business plan does not included any projected 
expenses for outside legal counsel. The Petitioner must support its assertions with relevant, 
probative, and credible evidence. See Matter oj"Chawathe. 25 I&N Dec. 369. 376 (AAO 201 0). 
In sum, instead of clarifying prior ambiguities, the newly submitted job description creates more 
ambiguities and is, at least in part, inconsistent with the originally submitted job description. The 
new job description is therefore insufficient to establish that the Beneficiary would allocate his time 
primarily to managerial or executive-level tasks within one year of filing the instant petition. 
B. Projected Staffing 
Further, despite the Petitioner's claims, the record does not demonstrate a realistic expectation that 
the organization will rapidly expand as it moves away from the developmental stage to full 
operations, such that there would be an actual need for an employee who performs primarily 
managerial or executive duties. 
Here, the record contains two organizational charts depicting a similar organizational hierarchy. The 
first chart was included in the Petitioner's supporting statement and shows the Beneficiary at the top 
of the hierarchy, a financial and administrative manager as the Beneficiary's direct subordinate. 
followed by a technical support supervisor and an office supervisor at the bottom of the chart as the 
financial and administrative manager's direct subordinates. The Petitioner provided job descriptions 
for each of these positions, which state that all three employees would report directly to the 
Beneficiary and thereby suggest a different reporting structure than the one illustrated in the 
organizational chart. In response to the latest RFE, the Petitioner provided a second organizational 
depicting the same organizational hierarchy and adds two outsourced service providers- accounting 
and legal services- subject to oversight of the financial and administrative manager. 
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 10l(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 organization must have a 
Matter of E-S-USA, Inc. 
subordinate level of managerial employees for a beneficiary to direct and they 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, as with the Beneficiary in the matter at hand. A beneficiary must also exercise ""wide 
latitude in discretionary decision making'' and receive only ""general supervision or direction from 
higher level executives, the board of directors, or stockholders of the organization.·· !d. 
In the present matter, while the record indicates that the Beneficiary would have discretionary 
authority to make business decisions as the organization's senior employee, it docs not establish that 
the Petitioner would hire a subordinate level of managerial employees for the Beneficiary to direct 
such that he could primarily focus on setting broad goals and policies. rather carrying out the 
Petitioner's daily operational functions, within a one-year period. In fact, while the Petitioner's 
business plan addresses the issue of staffing in the "'Management Summary" section, pointing to the 
pivotal role of a "'management stat1~" the record does not contain evidence establishing that the 
Petitioner seeks to expand its staff beyond hiring a financial and administrative manager, whose 
managerial role is not clear based on the content of the provided job description. The same section 
of the business plan makes vague references to a "'professional stafT' that will eventually relieve the 
Beneficiary from having to perform the organization's operational tasks. However, the business 
plan does not list the projected positions or duties to be performed by the staff or state that the 
Petitioner would grow beyond three support staff during its initial year. 
In addition, despite the financial and administrative manager's managerial position title, the 
reporting structure that was described in each of the employee job duties indicates that the 
subordinates would not directly report to the financial and administrative manager, as both 
organizational charts suggest; rather, the employee job descriptions indicate that the Beneficiary 
would directly supervise all three employees. Further, as we discussed above. the Petitioner's 
limited projected staffing structure indicates that the Beneficiary would likely have to continue to 
perform a number of its key operational functions, including, but not limited to, sales, marketing. 
and the logistical tasks involved in arranging third party shipping and receiving of merchandise. We 
therefore cannot conclude that the Petitioner would be able to support the Beneficiary 111 an 
executive position at the end of the one-year period following the tiling of this petition. 
The Petitioner also has not established, in the alternative, that the Beneficiary would be employed in 
a managerial capacity within one year. The statutory definition of '"managerial capacity" allows for 
both "personnel managers" and "function managers." See section 10l(a)(44)(A)(i) and (ii) of the 
Act. Personnel managers are required to primarily supervise and control the work of other 
supervisory, professional, or managerial employees. Contrary to the common understanding of the 
word ""manager,'' the statute plainly states that 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." Section 101(a)(44)(A)(iv) of the Act. If a beneficiary 
directly supervises other employees, the beneficiary must also have the authority to hire and tire 
Matter of E-S-U')A, Inc. 
those employees, or recommend those actions, and take other personnel actions. 8 C.F.R. 
§ 214.2(1)( 1 )(ii)(B)(3). 
As discussed, the Petitioner's staffing projections do not suppm1 the claim that the Beneficiary's 
primary concern at the end of the one-year period in question would be to oversee a staff of 
supervisory, professional, or managerial subordinates. Rather, it appears that the Petitioner's 
projected support staff would perform managerial or supervisory job duties, notwithstanding their 
position titles. 
Alternatively, the Petitioner argues that the Beneficiary would assume the role of a function 
manager, contending that rather than focusing on the number of employees the Beneficiary would 
oversee, we should look to the function the Beneficiary would perform. The Petitioner further 
argues that a beneficiary's performance of "secretarial functions'' is .. irrelevant"' if that individual 
manages an essential function. We disagree and find that the record does not support the claim that 
the Beneficiary would 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 staffbut instead is primarily responsible for managing an .. essential function"' 
within the organization. See section 101(a)(44)(A)(ii) of the Act. The term ··essential function"' is 
not defined by statute or regulation. If a petitioner claims that a beneficiary will manage an essential 
function, a petitioner must clearly describe the duties to be performed in managing the essential 
function, or more specifically, identify the function with specificity, m1iculate the essential nature of 
the function, and establish the proportion of a beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, a petitioner's description of a 
beneficiary's daily duties must demonstrate that the beneficiary will manage the function rather than 
perform duties related to the function. See Matter olZ-A-. Inc., Adopted Decision 2016-02 (AAO 
Apr. 14, 2016). 
As already addressed, the Petitioner has not provided an adequate job description that specifically lists 
the Beneficiary's proposed job duties. Furthermore, the Petitioner has not specifically identified the 
essential function it claims the Beneficiary would manage and it neither claims nor establishes that the 
Beneficiary would primarily manage an essential function. Rather, in multiple places throughout the 
appeal brief, the Petitioner states that the Beneficiary would actually perfhrm a key function. While 
the management of support personnel is generally only ancillary to the primary concerns of a function 
manager, the Petitioner must provide evidence that its organization would expand within its first year 
of operation such that it would have the support staff necessary to carry out the underlying duties 
associated with the essential function that the Beneficiary would manage. Our discussion above 
specifically addresses the various deficiencies in the job descriptions provided and explains why the 
Petitioner's projected support staff falls short of establishing that such staff would sufficiently relieve 
the Beneficiary from having to perform its operational tasks within one year. 
On appeal, the Petitioner cites to an unpublished decision in which we determined that a beneficiary 
met the requirements of serving in a managerial and executive capacity for L-1 classification even 
9 
Matter of E-S-USA, Inc. 
though he was the sole employee. The Petitioner has not established that the facts of this petition are 
analogous to those in the unpublished decision. Moreover. while 8 C.F.R. § 103.3(c) provides that 
our precedent decisions are binding on U.S. Citizenship and Immigration Services, unpublished 
decisions are not similarly binding. Likewise, with regard to the Petitioner's reference to Mars 
Jewelers. Inc. v. INS, 702 F. Supp. 1570, 1574 (N.D. Ga. 1988), we find that the Petitioner has 
similarly neglected to furnish evidence to establish that the facts of the instant petition are analogous 
to those in Mars Jewelers, where the district court found in favor of the plaintitT. That said, as with 
our own unpublished cases, we are not bound to follow the published decision of a U.S. district court 
in matters arising within the same district. Matter oj'K-S-, 20 I&N Dec. 715 (BIA 1993). Although 
the reasoning underlying a district judge's decision will be given due consideration when it is 
properly before us, the analysis does not have to be followed as a matter of law. !d. at 719. 
We find that the Petitioner's arguments on appeal do not adequately address the deficiencies 
discussed above and therefore it has not overcome the basis of the Director's decision. 
Ill. CONCLUSION 
The appeal must be dismissed as the Petitioner has not established that its new office would employ 
the Beneficiary in a managerial or executive capacity within one year. 
ORDER: The appeal is dismissed. 
Cite as Matter ofE-S-USA. Inc., ID# 574143 (AAO Sept. 28. 20 17) 
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