dismissed L-1A Case: Automotive Parts And Transport Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 20, 2019 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which describes its business as a seller of spare parts for trucks and other vehicles 
and a provider of transport services, seeks to continue the Beneficiary's temporary employment as its 
president under the L-lA nonimmigrant classification for intracompany transferees. 1 Immigration 
and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(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 initially approved the petition, but subsequently revoked 
the approval on the grounds that the record did not establish, as required: (1) that the foreign entity 
was doing business at the time the instant petition was filed; or (2) that the Beneficiary has been or 
will be employed in a qualifying executive capacity in the United States. The Director also made a 
finding of fraud without further specifics. 
The matter is now before us on appeal. The Petitioner asserts that the foreign entity was doing 
business and the Beneficiary was employed in an executive capacity in the United States at the time 
the instant petition was filed. The Petitioner also asserts that the finding of fraud was arbitrary and 
capricious, and has no basis in the record. 
Upon de nova review of the record, including the materials submitted in support of the appeal, we 
will withdraw the Director's finding that the foreign entity was not doing business at the time this 
petition was filed. We will also withdraw the Director's finding of fraud, for which no analysis or 
legal rationale was provided in the revocation decision. However, we will affirm the Director's 
finding that the record does not establish that the Beneficiary is employed in a qualifying executive 
capacity in the United States. Accordingly, we will dismiss the appeal. 
I The record indicates that the Petitioner previously filed a "new office" petition on the Beneficiary 's behalf which was 
approved for a validity period from January 19, 2016, until December 16, 2016. 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)(l)(ii)(F) . The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation one year 
within the date of approval of the petition to support an executive or managerial position. 
Matter of C-, Inc. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA 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 101(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. 
A petitioner seeking to extend an L-lA petition that involved a new office must submit a statement 
of the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the U.S. operation and evidence of the numbers and types of positions 
held; evidence of the U.S. operation's financial status; evidence that it has been doing business for 
the previous year; and evidence that it maintains a qualifying relationship with the beneficiary's 
foreign employer. 8 C.F.R. § 214.2(1)(14)(ii). This evidence must demonstrate that the beneficiary 
will be employed in a managerial or executive capacity, as defined at sections 10l(a)(44)(A) and (B) 
of the Act, under the extended petition. 
Under U.S. Citizenship and Immigration Services regulations, the approval of an L-lA petition may 
be revoked on notice under six specific circumstances. 8 C.F.R. § 214.2(1)(9)(iii)(A). To properly 
revoke the approval of a petition, a director must issue a notice of intent to revoke that contains a 
detailed statement of the grounds for the revocation and the time period allowed for 
rebuttal. 8 C.F .R. § 214.2(1)(9)(iii)(B). 
II. ANALYSIS 
The petition was filed in November 2016 and approved on December 1, 2016. In the notice of intent 
to revoke (NOIR), however, issued in June 2018, the Director advised the Petitioner that there were 
multiple grounds for revocation. The Director stated that the record did not establish that there was a 
qualifying relationship between the U.S. and foreign entities and that they were both doing business 
at the time the petition was filed, as required for these entities to meet the definition of "qualifying 
organizations" at 8 C.F.R. § 214.2(l)(l)(ii)(G), or that the Beneficiary was and will continue to be 
employed in a managerial or executive capacity, as defined in section 10l(a)(l5)(L)(A) and (B) of 
the Act. The Director suggested that specific items of documentation be submitted to overcome the 
grounds for revocation. Based on the Petitioner's response to the NOIR the Director found that 
some of the grounds for revocation had been overcome, but that the Petitioner had still not 
established that the foreign entity was doing business at the time the instant petition was filed or that 
the Beneficiary had been or will be employed in a qualifying executive capacity in the United States. 
The Director also made a finding of fraud, apparently linked to the first ground for revocation, but 
did not otherwise explain the basis for this finding. 
On appeal the Petitioner has submitted additional evidence which overcomes the Director's finding 
that the foreign entity was not doing business at the time the petition was filed. Since the Director's 
fraud finding was linked to this issue, though not farther explained in the NOIR or in the decision, 
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Matter of C-, Inc. 
we will withdraw the fraud finding as well. The issue still before us, therefore, is whether the 
Petitioner has established that the Beneficiary will be employed in an executive capacity in the 
United States. 2 
"Executive capacity" means 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) of the Act. 
Based on the statutory definition of executive capacity, the pet1t10ner 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). The petitioner must also 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 1533. The petitioner must provide a job 
description that clearly describes the duties to be performed by the beneficiary and indicate whether 
such duties are in an executive capacity. 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 the 
beneficiary's subordinate employees, the presence of other employees to relieve the beneficiary from 
performing operational duties, the nature of the business, and any other factors that will contribute to 
understanding the beneficiary's actual duties and role in a business. 
In the petition the Beneficiary's duties in the United States were described as follows: 
[A]s President of the U.S. Affiliate Company the Beneficiary will be in charge of 
establishing the goals and policies of the company, will hire and fire employees, 
evaluate the work performance of the employees, set the employees' salaries and, in 
general, will oversee all business activity of the U.S. Affiliate Company as its 
President. 
The petition was accompanied by a letter from the Petitioner's administrator stating that the U.S. 
operation had six employees, including the Beneficiary who spent approximately 80% of his time on 
executive duties and the remainder on administrative duties. The administrator repeated the job 
description in the petition verbatim and stated that the Beneficiary's job duties had "remained the 
same since the inception of the L-1 visa." No further evidence of job duties and staffing was 
provided in support of the extension petition, which was nevertheless approved. 
In response to the NOIR the Petitioner submitted a statement from its president asserting that the 
U.S. entity had six employees and some independent truck drivers at the time the petition was filed 
in November 2016, that he let the employees go when he returned to Venezuela in December 2016 
2 The Petitioner does not claim that the Beneficiary will be employed in a managerial capacity. 
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Matter of C-, Inc. 
with the intention of rehiring them upon his return to the United States in January 201 7, but that he 
could not retum 3 and that the Petitioner continued to operate with independent truck drivers during 
2017. The Petitioner claimed that the Beneficiary's job duties with the U.S. entity met the four 
criteria for "executive capacity" at the time of filing in that: 
• 20% of his time was spent directing the management of the corporation's business 
operations, which involved supervising and controlling the work of two professional 
and/or supervisory employees - the administrator and the operations manager - and 
included weekly meetings with those employees to ensure that the policies, procedures, 
sales goals, and objectives set by the president were being achieved. 
• 10% of his time was spent establishing corporate goals and policies, including 
"Administrative Department" guidelines for invoicing and collecting payments for the 
sales of products and services and "Operations Department" guidelines to maximize 
operational efficiency. 
• 40% of his time was spent on activities involving the exercise of wide latitude in 
discretionary decision-making - including 5% in establishing the monthly budget by 
analyzing monthly costs, 10% coordinating activities between the Administration and 
Operations Departments, 20% establishing and developing new markets for the sale of 
the Petitioner's products and services, including meetings and negotiations with chief 
executives of potential customers, and 5% analyzing revenues and costs to determine the 
highest feasible prices for the Petitioner's products and services. 
• As president of the U.S. entity the Beneficiary reported to the Venezuelan affiliate's 
board of directors and received only general supervision from that body. 
According to the Beneficiary's statement, therefore, 70% of his time was spent performing 
"executive capacity" job duties. The Beneficiary stated that the remaining 30% of his time involved 
day to day activities of the business. 
The Petitioner provided an organizational chart showing six employees, including the Beneficiary as 
president, an administrator and an operations manager subordinate to the president, and three 
transportation drivers subordinate to the operations manager. The Petitioner asserted that the "non­
executive day to day activities of the [business] were mostly handled by its Administrator and 
Operations Manager together with their subordinates," thereby "allow[ing] the Beneficiary to mainly 
perform executive duties." 
In his statement the Beneficiary described both the administrator and the operations manager as 
"professional and supervisory" employees, provided job descriptions of the two positions, and 
3 U.S. Customs and Border Protection (CBP) records indicate that the Beneficiary did return to the United States on 
March 6, 2017. 
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Matter of C-, Inc. 
alluded to the academic credentials of the respective employees. The duties of the administrator 
were described as: 
• Overseeing the achievement of the policies and procedures of the Administration 
Department as established by the president; 
• Preparing the monthly budget as established by the president; 
• Overseeing the preparation of the employees' payroll and payroll taxes; and 
• Overseeing the preparation of all written documentation relating to the sales of products 
and services; 
The duties of the operations manager were described as: 
• Overseeing the achievement of the policies and procedures of the Operations Department 
as established by the president; 
• Overseeing the transportation of the customer's products to their destinations; and 
• Supervising and evaluating the corporation's long haul transportation drivers. 
In her decision revoking the approval of the petition the Director found that there were unresolved 
documentary discrepancies concerning the purported salaries and actual wages paid to the 
Petitioner's president and other employees, and that the evidence of record was insufficient to show 
that the Petitioner had a subordinate level of employees to relieve the Beneficiary from performing 
non-qualifying day to day operations of the business. The Director concluded that the record did not 
establish that the Beneficiary has been or will be employed in a qualifying executive capacity in the 
United States. 
On appeal the Petitioner addresses the salary and wages paid discrepancies discussed in the 
Director's revocation decision, and we are satisfied by the Petitioner's submission that they do not 
provide grounds for revocation. However, the Petitioner does not address the Director's more 
important finding that the Beneficiary's job duties, considered in conjunction with the Petitioner's 
overall staffing and the duties of the two directly subordinate employees, do not demonstrate that the 
Beneficiary has been or will be employed in a primarily executive capacity, as claimed in the 
petition. Thus, the Petitioner provides no basis for us to overturn the Director's finding on this issue. 
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 
subordinate level of employees for a beneficiary to direct and 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 (s)he has 
an executive title or because (s)he "directs" the enterprise as the owner or sole managerial employee. 
A beneficiary must also exercise "wide latitude in discretionary decision making" and receive only 
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Matter of C-, Inc. 
"general superv1s10n or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. 
In this case, the Petitioner describes many of the Beneficiary's so-called executive duties in vague 
and general terms that do not convey much information about what they actually entail and how they 
would take up 70% of an average work day, as asserted. For example, the Petitioner claims that the 
Beneficiary will spend 10% of his time on establishing corporate goals and policies for the 
administrative and operations departments, and another 10% of his time coordinating the activities of 
those two departments. Considering the administrator has no subordinate employees, it does not 
appear that an administrative department even exists. Even if it did, the Petitioner does not explain 
why establishing and coordinating goals and policies for the administration and operation of its 
business is such an ongoing process that it would take up 20% of the Beneficiary's time into the 
indefinite future. The Petitioner claims that the Beneficiary would spend another 20% of his time 
establishing and developing new markets, but provides few details about what activities that would 
entail aside from meetings and negotiations with potential customers. The lack of detail is pervasive 
in the Petitioner's description of the Beneficiary's job duties, and casts doubt on its claim that the 
Beneficiary will be performing primarily high-level executive functions as president of a trucking 
company with five employees. 
When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality 
of the evidence, including descriptions of a beneficiary's duties and his or her subordinate 
employees, the nature of a petitioner's business, the employment and remuneration of employees, 
and any other evidence contributing to a complete understanding of a beneficiary's actual role in a 
business. The evidence must substantiate that the duties of a beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy and artificial tiers of 
subordinate employees and inflated job titles are not probative and will not establish that an 
organization is sufficiently complex to support an executive or manager position. In considering the 
foregoing factors, we note once again that the Petitioner is a truck parts and transport provider with 
just five employees subordinate to the Beneficiary. Of those five employees, one is an administrator, 
one an operations manager, and three are transportation drivers performing the daily operational 
tasks of the business. Despite his title of president, therefore, the Beneficiary does not occupy an 
elevated position within a complex organizational hierarchy. 
While the Petitioner describes the administrator as a "supervisory" position, with three of the four 
job duties described as "overseeing" various functions, the record does not support that claim. The 
fact is that the administrator has no subordinate employees to oversee. It is reasonable to conclude, 
therefore, that the administrator directly performs, rather than oversees, the preparation of employee 
payroll and payroll taxes, as well the preparation of written documentation of product sales and 
services. As for the "achievement of policies and procedures ... as established by the president," 
this would appear to be little more than doing things the way the president wants them done. Thus, 
the administrator does not appear to have a job requiring high-level executive oversight by the 
Beneficiary. In contrast to the administrator, the operations manager does have some managerial 
responsibilities, including the supervision of the truck drivers and overseeing the process of 
transporting goods to customers. But these are straightforward tasks in the trucking business, and 
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Matter of C-, Inc. 
limited in scale considering the Petitioner's modest volume of business. 4 Once again, these factors 
do not indicate that the operations manager requires high-level executive oversight by the 
Beneficiary. 
A company's size alone, without taking into account the reasonable needs of the organization, may 
not be the only factor in denying a visa to a multinational manager or executive. Section 
10l(a)(44)(C) of the Act. The Beneficiary's duties must be the critical factor. However, if USCIS 
fails to believe the factual claims stated in the petition are true, then USCIS may reject those 
assertions. See, e.g., section 204(b) of the Act; Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C. 2001). Here, as discussed above, the Petitioner's description of the Beneficiary's duties and 
its organizational structure are not credible. As such, the Petitioner has not established that the 
Beneficiary will be employed in an executive capacity. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary will be employed in the United States in an 
executive capacity. The appeal will be dismissed for the above stated reason. In visa 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-, Inc., ID# 3676032 (AAO Nov. 20, 2019) 
4 Moreover, although the record indicates that the Petitioner's employees were all on the payroll before the petition was 
filed in late 2016, it is not clear that they were all full-time employees at that time. 
7