dismissed L-1A Case: Automotive

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-C- INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 25,2018 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which manufactures and repatrs driveshafts, seeks to temporarily employ the 
Beneficiary as its managing director, at a base salary of $36,000 per year, under the L-1 A 
nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the 
Act) section 10l(a)(l5)(L), 8 U.S.C. § 110l(a)(l5)(L). The L-lA 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 record did not 
establish, as claimed, that the Beneficiary has been employed abroad, and will be employed in the 
United States, in an 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 imposing too high a standard of proof. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for theL-IA 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 IOI(a)(IS)(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. The 
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. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary has been employed abroad, and will be employed in the United States, in an executive 
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Matter of D-C- Inc 
capacity. The Petitioner does not claim that the Beneficiary has been or will be employed in a 
managerial capacity or a capacity involving specialized knowledge.' 
An executive capacity is 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 
10l(a)(44)(B) ofthe Act. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 1 0 1 (a)( 44 )(C) of the Act. 
A. Employment Abroad in an Executive Capacity 
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 IOI(a)(44)(8) 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 
subordinate level of managerial employees for a beneficiary to direct and a 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 an owner or sole 
managerial employee. 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. 
The Petitioner identified its foreign parent company as a company in Botswana 
which specializes in building and repairing certain automotive parts, but which also conducts safari 
trips. 
1 We note that , on appeal, the Petitioner asserts that the Beneficiary "spends I 00% of his time functioning in a 
managerial capacity," but the Petitioner does not appear to mean this statement in the legal sense of a managerial, rather 
than executive, capacity. This statement appears under the heading "Foreign Executive Capacity," in which the 
Petitioner cites and quotes the statutory definition of "executive capacity," but not "managerial capacity." The Petitioner 
also asserts on appeal that the Beneficiary's "duties are executive in nature." Therefore, we do not construe the 
Petitioner's isolated or occasional use of the phrase "managerial capacity'' as a formal claim that the foreign company 
employs the Beneficiary as a manager rather than as an executive. 
2 
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Matter of D-C- Inc 
1. Inconsistencies 
The record contains a number of discrepancies and inconsistencies which raise general questions 
about the reliability of the Petitioner's claims and assertions. For example, the Petitioner asserted 
that "began in 2003,'' and that the Beneficiary is the company's "founder and 
creator" who has worked there since January 2004. A "Company Profile" submitted on appeal also 
states "The company was incorporated in the year 2003." The company's certificate of 
incorporation, however, is dated March 2001, when the Beneficiary claimed to be working in South 
Africa, operating a difierent automobile repair company and a farm. The Beneficiary was not 
among the company's original shareholders in 2001. Documentation from Botswana's Registrar of 
Companies indicated that the Beneficiary was appointed as a director of the company in July 2007. 
The Petitioner asserted that the Beneficiary does not report to any higher authority, but under the 
company's articles of association, the managing director is subject to the authority of the board of 
directors. (The directors may "confer upon the Managing Director all or any of the powers of the 
Directors," but those "powers may at any time be varied/withdrawn or revoked.") As of 2015, the 
Beneficiary was one of four directors. 
The record materials appear to disagree as to how much of activity relates to 
safaris rather than automotive part manufacturing and service. Some versions of the Beneficiary's 
own job description do not mention safaris at all, but those of several subordinates focus mostly or 
entirely on that element, and many employees' prior work experience is predominantly in the safari 
industry. An expanded version of the Beneficiary's job description states: "Long before the 
Hunting-Safari Industry (which provided with its biggest clients) collapsed, [the 
Beneficiary] had decided that it was best if the company started serving the burgeoning mining 
industry in Northern Botswana," and thereby "manoeuvred the company away from certain trouble.'' 
But the record contains a document 2 that referred to as a "propshaft and 
engineering workshop" that now offered "Safaris - a new exciting edition [sic] to our Company.'' 
These assertions are in conflict; the former indicates that safaris were a major revenue source for the 
company, and that the Beneficiary steered the company toward other activities, while the latter 
portrays the foreign company as an automotive engineering company that has newly added safaris to 
its existing business structure. 
Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other 
evidence submitted in support of the requested immigration benefit. See Matter ofHo, 19 I&N Dec. 
582, 591-92 (BIA 1988). As a result, we must bear these discrepancies in mind when weighing the 
credibility of the Petitioner's assertions and evidence. 
2 
The Petitioner referred to this document as a "[w]ebsite printout," but the document does not show a web address or 
other indicia, and the Petitioner did not identify the website from which the printout purportedly originated. 
3 
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Matter of D-C- Inc 
2. Staffing 
In discussing the Beneficiary's employment abroad, the Director focused on the Issue of the 
Beneficiary's subordinate staff 
The definition of executive capacity has two parts. First, the Petitioner must 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 managerial or 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 1533. 
USCIS reviews the totality of the record when examining the claimed managerial or executive 
capacity of a beneficiary, including 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. 
The foreign company's initial organizational chart included the following information: 
Managing Director [the Beneficiary] 
I 
Operations Director 
Financial Director Logistics Director Marketing Manager 
I I [no subordinates identified] 
[three subordinates] Fleet Manager 
I 
[six subordinates plus two vacancies] 
The record shows several deviations from the structure detailed in the chart, many of them found in 
performance appraisals signed by the Beneficiary and by the individuals appraised. The positions 
shown on four of the appraisals do not match the organizational chart, even though the appraisals 
date from less than three weeks before the Petitioner filed the petition. 
Name Title (chart) 
Operations Director 
Logistics Director 
Technician Ass't 
Ass't Clerk 
Title (appraisal) 
Logistics Director 
Admin. Director 
General Worker 
General Worker 
4 
Reports to (appraisal) 
Managing Director 
Managing Director 
Admin. Manager 
Admin. Manager 
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Matter of D-C- Inc 
The evaluations for and for the cleaner both indicate that the cleaner is under 
authority as administration director. According to the organizational chart, the cleaner reports to the 
financial director. The chart does not show an administrative director or an administrative manager. 
In his resume, identified variously as operations director and logistics director, provided 
this description of his job with 
Manager in charge of establishing logistical operations for a very large German Tour 
Agent - Manage all existing tour operations tor Botswana 
related tours (± 4500 bed nights per annum in 2016 and increasing to ± 6000 bed 
nights per annum in 2017 throughout Botswana). 
Coordinate the building/converting of vehicles suitable for the Botswana landscape -
fourteen luxury vehicles with 4X4 capability to transport all guests on tour 
in Botswana, Zimbabwe, Namibia and South Africa. 
Advise on all new investment business within Botswana. 
The above description has no apparent relation to the company's work with automotive parts; it 
deals exclusively with safari trips. While the organizational chart listed as 
operations director, signed a letter under the title "logistics director." 
The resume for the identified financial manager indicated that, since 2011 , she has performed 
"[b ]ookkeeping up to trail balance and VAT returns" for and three other 
companies. The reference to multiple employers at once is consistent with the individual's stated 
goal of a "Part Time Accounting/Bookkeeping Post." 
The identified marketing manager described his employment with 
back-up, Sales and Marketing." 
as "Utility 
Asked to provide additional information about the foreign company's subordinate stafT, the 
Petitioner submitted with what it called an "Updated Organizational Chart," which is the same as the 
chart submitted initially. The Petitioner also submitted job descriptions for key subordinate 
positions. The submitted summaries of those descriptions follow: 
Operations Director, 
Organize and oversee the daily operations of the company. Ensure that our business 
is well coordinated and productive by managing its procedures and coaching its 
people. 
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Matter of D-C- inc 
Financial Director 
To oversee all financial aspects of the business and drive the company's financial 
strategy and planning. The position will be responsible for assessing the financial 
performance of the company as well as possible risks and investments. 
Logistics Director 
The Logistics manager will manage, oversee and direct operations pertaining [to] 
logistics and the entire Fleet Staff to enhance business development and to ensure 
sustainability and customer satisfaction. 
Marketing Manager 
The Marketing Manager is responsible for developing, implementing and 
effective[ly] executing [the] strategic marketing plan for the entire Company in order 
to attract potential customers and to retain our existing customers. Marketing 
strategies to include foreign/abroad markets. 
Fleet Manager 
The Fleet Manager will work closely with all subordinates to manage expenditures 
and deliver the highest possible level of service to our customers. The manager will 
streamline logistics and operations to keep costs down, but still deliver the level of 
service customers are expecting. 
The Director found that the Petitioner had not established that the Beneficiary's subordinates 
perform "management level duties," 
for instance relating to personnel matters. 
Although the Director's denial decision focused on the Beneficiary's subordinate staff: with only a 
brief mention of the Beneficiary's duties, the Petitioner's appellate brief concentrates on the 
Beneficiary's duties rather than the foreign company's staffing. The Petitioner does state, on appeaL 
that the Beneficiary "directs the company through his immediate subordinate, the Logistics 
Director;' identified as 
As we have already noted, the Petitioner has provided two different titles for (logistics 
director and operations director), and some versions of the foreign company's organizational chart 
do not show the logistics director as the Beneficiary's immediate subordinate. own 
resume limited his responsibility to safari-related duties for one major client. The Petitioner does not 
explain or even acknowledge the inconsistencies in this regard. We note that, in a "Company 
Profile" submitted on appeal, the Petitioner states that "has been in tourism since 1998" 
and has been a "Managing Director of 
[from] 2012 to date." If this information is correct, then divides his time 
(i 
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Matter of D-C- Inc 
between two employers, 58 miles apart, which would limit his availability to act as a manager at 
The Petitioner submits a new organizational chart on appeal which does not show any operations 
director position, and adds an administrative director position. This chart is consistent with some of 
the Petitioner's earlier statements and submissions, but not with others. Rather, it continues the 
pattern in which the foreign company has claimed two overlapping but distinct organizational 
structures. 
In a resume submitted on appeal, identifies her current employer at 
but does not state her job title there. She indicates that she also works for another company, 
indicating that she divides her time between two employers. 
Describing her duties, she states: 
On the job training to utilize QuickBooks and the use thereof in tourism 
specific[ally], as well as other services industries. All her financial management 
duties came with physically being responsible for various entities' government related 
payments . . . as well as company related controls and payments such as salaries, 
stock controls and stock takes with the re-ordering and supply of stock. 
previously submitted job description did not mention any "financial management 
duties" or "re-ordering and supply of stock." 
The record establishes the existence of a subordinate staff at but the Petitioner's 
submission of conflicting information regarding the company's organizational structure and the 
duties and titles of key employees raise unanswered questions regarding the true roles of the foreign 
company's named employees. 
Because the Petitioner has not provided 
consistent information about the titles, roles, and duties of 
the Beneficiary's subordinates at the Petitioner has not shown that these workers 
relieve the Beneficiary from primarily performing non-qualifying tasks at that company. 
3. Duties 
The Petitioner stated that the Beneficiary "has the highest position in the [foreign] company" and 
"does not report to anyone." In his letter, stated: 
[The Beneficiary] is directly responsible for directing key aspects of the company's 
operation including directing the company's operations, management, marketing, and 
production. 
He also creates the strategies and puts into action the company's strategic business 
plan in a way that is the most effective to the company in terms of finances, time and 
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Matter of D-C- Inc 
growth. [The Beneficiary] is charged with creating and developing the business plan 
required for the long term sustainability of the business. 
(The Beneficiary] leads all the strategic development and expansion of the foreign 
company. He is responsible for designing strategic policies , developing marketing 
strategies , overseeing marketing and sales procedures and is in charge of overseeing 
the work performance of senior managerial-level personnel. 
[The Beneficiary] directs the company through his immediate subordinate, the 
Operations Director. He directs the Operations Director in the direction he wishes the 
company to advance, with specific goals. [The Beneficiary] also relies on the 
Operations Director to provide the necessary input, information and feedback 
required to develop company policy. 
We note again here that, although described the role of the operations director in his 
letter, he effectively denied that he was the operations director, claiming instead the subordinate title 
of logistics director. 
On his own resume, the Beneficiary stated: 
As the Managing Director of I'm involved with all the day to day 
Management, Planning. Human resources and operations of my company . . . . I have 
a hands-on approach, and not a single component that my company has produced or 
repaired has passed without my own personal quality approval. 
Quality control inspection is not an executive task. Therefore, the Beneficiary's claim that he 
personally inspects every component for quality indicates a significant operational duty. But the 
Petitioner submitted a five-page, 43-item job description for the Beneficiary, which did not mention 
that he personally performs quality control inspections. Neither of the job descriptions mentioned 
the company's safari business. 
As noted above, the Director based the denial decision on staffing issues rather than on the 
Beneficiary's job description, but the Petitioner's appellate brief emphasizes the Beneficiary's 
claimed duties and accomplishments. The Petitioner asserts, on appeal, that the Beneficiary "is in 
charge of directing the entire operation." At issue here is not the level or amount of the 
Beneficiary's control over the foreign company, but whether the Beneficiary primarily worked in an 
executive capacity rather than performed lower-level functions. The inconsistent information that 
the Petitioner has provided does not permit a finding that the Petitioner has met its burden of proof in 
this regard. For example, the Petitioner states on appeal that the Beneficiary runs the foreign 
company by "issuing orders to the Operations Manager," but the organizational chart submitted on 
appeal does not show an operations manager. 
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Matter of D-C- Inc 
For the above reasons, we find that the Petitioner has not met its burden of proof to establish that the 
Beneficiary was employed abroad in a primarily executive capacity. 
B. U.S. Employment in an Executive Capacity 
1. New Office 
On the petition form, the Petitioner claimed to qualify for special provisions specific to a "new 
office," which has been doing business for less than one year. See 8 C.F.R. § 214.2(1)(1 )(ii)(F). The 
Director found that the Petitioner does not qualify for classification as a new office, because invoices 
from March 2016 show that the Petitioner had begun doing business more than a year before the 
petition's April 2017 filing date. Subsequently, the Petitioner submitted a new supplement to the 
petition form, withdrawing its initial request to be treated as a new office. 
In the job description submitted initially, the Petitioner did not indicate that the Beneficiary's 
intended duties were already those of an executive. Rather, in keeping with the initial "new office" 
claim, the Petitioner stated that "[t]he job duties the beneficiary will be performing by the end of the 
first year [will be] executive in nature.'' 
While a new office must show that it will support a managerial or executive position within a year of 
approval of the petition, an entity that does not qualify as a new office must, at the time of filing, 
already have an organizational structure that supports a managerial or executive position. See 
8 C.F.R. § 103.2(b)(l), which requires the Petitioner to meet all eligibility requirements as of the 
filing date. 
We note that the Beneficiary entered the United States on December 30, 2015, using a B-2 
nonimmigrant tourist visa, rather than a B-1 nonimmigrant visa for a business visitor. According to 
the minutes of a July 8, 2015 meeting, however, the Beneficiary was "tasked with travelling to the 
United States this year" to begin the process of opening a business in Florida, because he was "the 
ideal candidate to relocate to the USA to set up and run the operation there." Thus, the record 
establishes the Beneficiary's intention to open a business in the United States while on a tourist visa. 
The Beneficiary appears to have remained in the United States since his December 2015 entry, 
despite the expiration of his B-2 nonimmigrant status on June 29,2016. 3 
3 In the denial notice, the Director observed that the Beneficiary has already begun performing work for the Petitioner, 
despite lacking employment authorization. The Petitioner does not address this issue on appeal. There is no evidence 
that the Petitioner has paid the Beneficiary for this work. Nevertheless. the lack of compensation does not shield the 
Beneficiary from the consequences of unlawful presence in the United States following the expiration of his B-2 
nonimmigrant status. 
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Matter of D-C- Inc 
2. Staffing 
As with the Beneficiary's foreign position, the Director's determination regarding the Beneficiary's 
U.S. employment centered on the company's staffing. At the time of filing, the Petitioner had two 
U.S. employees, identified as a chief technical officer (CTO) and "Technical Support/Training." 
The Petitioner's business plan signaled the company's intention to hire an accounts manager and 
parts manager within a year after approval of the Beneficiary's petition, plus additional staff in later 
years, but those positions were unfilled at the time of filing. 
The Petitioner submitted job descriptions for the subordinate workers after the Director requested 
them. The technical support and training worker position is a front-line operational position; the 
worker spends 60% of his time on "[ m ]aintenance, troubleshooting, repair and balance of 
dri veshafts." 
The CTO's job description filled most of a page. The chief duties (each occupying between 8% and 
10% of his time) are as follows: 
Establish a governance process of direction and control to ensure that Company's 
objectives are achieved. 
Direct and develop a security and safety plan. 
Source, qualify, manage and train Technical Personell [sic] on both technical and 
custormer [sic] aspects of daily operations. 
Manage and promote vendor relationships as well as customer services. Be the face 
of the Company. Integrate customer service and support with the engineering process 
to support resolution of customer issues and improve customer service. 
Oversee the work of Technical Support Staff and Welder to ensure that all jobs are 
completed on time, within budget, and to customer specifications. 
The above job descriptions are not accurate in reference to the filing date. For instance, the 
Petitioner had not yet hired a welder. These after-the-fact job descriptions cannot establish that a 
management structure warranting an executive position existed at the petitioning company at the 
time of filing. The same applies to the Petitioner's assertion that it "currently has five direct hire 
employees" along with outsourced manufacturing and financial functions. 
In the denial notice, the Director found several deficiencies relating to the company's staffing. The 
Director concluded that the Petitioner had not established that the CTO had managerial authority 
over personnel decisions. The Director found that the Petitioner had not submitted evidence to 
support its assertion that it outsourced several operational and administrative functions. The 
Director concluded that the Petitioner had not shown "the organizational and operational complexity 
to support an L-1 A manager or executive." 
On appeal, the Petitioner discusses details from the Beneficiary's job description and asserts that the 
Beneficiary will have high-level responsibility over the company. The Director had not disputed the 
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Matter of D-C- Inc 
extent of the Beneficiary"s authority. Rather, the denial focused on the company's structure at the 
time of filing. 
Rather than address the state of the company at the time of filing, the Petitioner states: "The U.S. 
Company is expected to grow in complexity and in size," and "the company will require an 
executive to continue with the company as it expands in the U.S." The Director had advised the 
Petitioner, in the denial notice, that the Petitioner must establish eligibility at the time of filing. 
Discussion of the company's growth post-filing, and speculation about future growth, cannot 
establish that a qualifying executive position already existed when the Petitioner filed the petition. 
When the Petitioner filed the petition, the company was doing business, as shown by invoices and 
correspondence. But the company had not yet reached a stage at which it could realistically support 
a primarily executive position. The Beneficiary"s high degree of control over the company is not 
sufficient, by itself, to qualify him as an executive. 
III. CONCLUSION 
The Petitioner did not establish that the Beneficiary has been employed abroad in an executive 
capacity, or that a primarily executive position existed for him in the United States at the time of 
filing as the regulations require. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-C-lnc, ID# 888138 (AAO Jan. 25, 2018) 
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