dismissed L-1A Case: Beverage Distribution

MATTER OF B-W-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 9, 2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which engages in the sale and distribution of bottled water beverages, seeks to 
continue the Beneficiary's temporary employment as its chief executive officer (CEO) under the L-IA 
nonimmigrant classification for intracompany transferees. Immigration and Nationality Act (the 
Act) section 101(a)(l5)(L), 8 U.S.C. § 1101(a)(l5)(L). The L-IA 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: (1) the Beneficiary would be employed in an executive capacity 
under the extended petition; and (2) the Beneficiary was employed in an executive capacity abroad 
prior to his transfer to the United States. 
On appeal, the Petitioner submits additional evidence in support of its claim that the Beneficiary was 
abroad, and will be employed in the United States, in an executive capacity. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility fQr 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)(15)(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 term "executive capacity" is defined 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 101 (a)(44)(B) of the Act. 
Matter of B-W-, Inc. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY., 
The first issue to be addressed is whether the Petitioner established that it will employ the 
Beneficiary in an executive capacity under the extended petition. The Petitioner does not claim that 
the Beneficiary will be employed in a managerial capacity. 
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. § 2 l 4.2(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 or staff 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 Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
B. Duties 
The Petitioner's co-founder provided a description of the.Beneficiary's duties as CEO at the time of 
filing. He stated that the Beneficiary: 
• Is a co-founder of the company 
• Is a member of the board of directors for [the Petitioner] 
• Sets the company goals, policies, targets and budgets for the company 
• Develops the strategy and direction of the company 
• Directs the management of the product development and marketing of the group 
• Performs high level decision making as a member of the board 
The Petitioner's letter went on to state that the Beneficiary "has full executive responsibility for the 
sales, marketing and product development functions across the corporation," that he regularly makes 
"high level decisions" regarding the company's performance and direction, and that he "manages 
and cultivates relationships with funders to secure and expand recurring revenue streams." Finally, 
the Petitioner noted that the Beneficiary's responsibilities include "finances, operations and human 
resources." 
In response to a request for evidence (RFE), the Petitioner submitted a new letter with the same job 
description. 
We agree with the Director's determination that this broad description of the Beneficiary's duties does 
not convey what he would be doing on a day-to-day basis as the Petitioner's CEO. The Petitioner did 
not provide any concrete examples of policies, strategies, or goals the Beneficiary would develop or 
high-level decisions he would make in support of its claim that he would spend his time primarily 
focused on higher-level planning and decision-making responsibilities. In fact, many of the duties 
simply paraphrase the statutory definition of executive capacity and the Petitioner did not identify the 
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Malter of B-W-, Inc. 
specific tasks that would occupy the Beneficiary's time. 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 Petitioner did not provide any detail or 
explanation of the Beneficiary's activities in the course of his daily routine. Fedin Bros. Co., Ltd v. 
Sava, 724 F. Supp. 1103, I 108 (E.D.N.Y. 1989), affd, 905 F.2d41 (2d. Cir. 1990). 
Although the Director's decision specifically addresses the deficiency of the submitted job description 
as a basis for denial, the Petitioner has not provided an expanded description or additional information 
regarding the nature of the Beneficiary's actual daily tasks on appeal. Instead, the appeal focuses on the 
Beneficiary's delegation of certain non-executive functions to external contractors. We will address the 
Petitioner's staffing claims below; however, we cannot make a determination regarding the 
Beneficiary's claimed executive capacity without a detailed description of his position. The record 
remains deficient with respect to this material evidence. 
We acknowledge the Beneficiary's role as co-founder and member of the Petitioner's board of 
directors and the heightened level of responsibility this role involves. However, the fact that the 
Beneficiary will manage or direct a business does not necessarily establish eligibility for 
classification as an intracompany transferee in an executive capacity within the meaning of the 
statutory definition. By statute, eligibility for this classification requires that the duties of a position 
be "primarily" executive or managerial in nature. Section 101(a)(44) of the Act. Here, we are 
unable to determine what the Beneficiary primarily does on a day-to-day basis and therefore the 
Petitioner has not met its burden to establish that his actual duties are primarily executive in nature. 
C. 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 101(a)(44)(C) of the Act. 
/ 
The Petitioner distributes its own brand of water beverages and had four employees at the time of 
filing, including the Beneficiary, the co-founder/COO, and two individuals whose job titles and duties 
were not identified p·rior to the denial of the petition. The Petitioner did not provide an organizational 
chart, nor did it mention or document its use of independent contractors. Because the Petitioner did 
not identify who performs the day-to-day, non-executive duties required for the operation of the 
business, the Director found that it did not meet its burden to establish that the Beneficiary directs the 
management of the company or that it has sufficient staff to relieve the Beneficiary from spending a 
significant portion of his time on non-qualifying tasks. 
On appeal, the Petitioner asserts that the Director placed undue emphasis on the small size of the 
company. It maintains that the Beneficiary directs the management of the sales and marketing 
functions of the company, relying on a team of employees and external contractors who "do the actual 
work required" to market and sell the company's products. 
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Mauer of B-W-, Inc. 
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 organization must have a 
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. 
To meet its burden, the Petitioner must show that the Beneficiary will perform certain high-level 
responsibilities consistent with the statutory definition of executive capacity. Champion World, Inc. 
v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 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, e.g., Family Inc. v. 
USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
The Petitioner correctly asserts that both internal employees and external contractors can be 
considered in determining whether the Beneficiary has sufficient support to relieve him from 
significant involvement in non-executive duties. Here, the Petitioner states that the Beneficiary has a 
direct subordinate, a sales executive who is "responsible for sales in the New York area." This brief 
description of duties is insufficient to show how this employee relieves the Beneficiary from 
involvement in non-executive sales activities on a day-to-day basis, and the Petitioner has not 
identified the job title or job duties of its other payroll employee, who is not claimed to support the 
sales or marketing functions. 
The Petitioner also identifies an external sales contracting company focused on key sales accounts in 
the northeastern United States, and an external brokering company responsible for handling key 
national sales accounts. The Petitioner has provided a sample invoice from both sales contractors 
and a few sample emails as evidence of the Beneficiary's interactions with them. The Petitioner 
explains that the Beneficiary provides the sales team with goals and objectives to execute but does 
not further elaborate on the nature of the Beneficiary's role, the specific responsibilities of the sales 
employee and contractors, or the frequency of the sales contractors' work for the company. Overall, 
the new evidence does not provide sufficient insight into the nature of the Beneficiary's duties with 
respect to. the sales function or show that he performs primarily executive-level duties with respect to 
this function. 
With respect to the marketing function, the Petitioner has identified: an external company that. 
develops product design and marketing elements; a consultant who develops brand positioning 
communication elements; a social media marketing contractor; a contractor who. develops creative 
elements for brand marketing; and a former marketing intern who executed "marketing and event 
management activities." As with the sales staff, the Petitioner has provided some sample invoices 
and email communications, but only brief descriptions of the services these individuals and entities 
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Matter C?.f B-W-, Inc. 
provide with respect to product marketing. The BeneficiH;ry appears to work collaboratively with the 
contractors on activities such as product messaging and label design and there is insufficient 
evidence to establish that he primarily directs the management of the marketing function. 
Therefore, while the Petitioner has now identified one employee and various contractors who assist 
with carrying the duties necessary for the sales and marketing functions, it still has not clearly 
described the actual day-to-day duties the Beneficiary will perform in directing these functions. 
Further, the record does not sufficiently establish that all of its sales and marketing activities are 
contracted out, such that the Beneficiary is removed from involvement in non-executive sales and 
marketing tasks. The newly submitted evidence assists us in determining some of the functions that 
the Beneficiary does not perform, but is not provide sufficient insight into what he primarily does on 
a daily basis. 
Finally, the Petitioner has stated that the Beneficiary's responsibilities extend beyond sales and 
marketing to "finances, operations, and human resources." However, it has not identified the duties 
he performs in these areas, what types of activities are involved in "operations," how much of his 
time he allocates to these responsibilities, or any subordinates or contractors who assist him with 
these activities. 
For these reasons, the new evidence submitted on appeal is insufficient to overcome the lack of a 
detailed job description for the Beneficiary. Notwithstanding the Beneficiary's posi~ion title, the 
record does not adequately support the Petitioner's claim that he will be employed in an executive 
capacity as defined at section 10l(a)(44)(B) of the Act. 
III. EMPLOYMENT ABROAD IN AN EXECUTIVE CAPACITY 
The remaining issue in this case is whether the Petitioner established that its foreign subsidiary 
employed the Beneficiary in an executive capacity prior to his transfer to the United State~. 
In the denial decision, the Director emphasized that the Petitioner did not describe the Beneficiary's 
duties with the foreign entity beyond stating that he "had executive duties that include[d] sales for 
US, Europe along with marketing responsibilities for the group." The Director also emphasized that 
neither the initial evidence nor the response to the RFE included an organizational chart or list of 
subordinates the Beneficiary directed while employed by the Petitioner's subsidiary. 
On appeal, the Petitioner states that the Beneficiary's duties abroad were the same as those he 
performs in the United States and that he was responsible for the sales and marketing functions of 
the business. It does not further elaborate on the nature of the Beneficiary's duties abroad. We 
agree with the Director that the Petitioner's claim that the Beneficiary "had executive duties" related 
to sales and marketing does not meet its burden to show that he was employed in an executive 
capacity as defined at section 10l(a)(44)(B) of the Act. We discussed the deficiencies of these broad 
statements above and find that the same analysis applies here. Conclusory assertions regarding the 
Beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute 
or regulations does not satisfy the Petitioner's burden of proof. Fedin Bros., 724 F, Supp. at 1108, 
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Mauer of B-W-. Inc. 
qff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr As.mes., Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y .). 
On appeal, the Petitioner has not identified any direct subordinates the Beneficiary managed while 
employed abroad, but provides evidence related to four external contractors who provided services 
to the foreign entitY: These contractors included a PR agency, a sales executive responsible for 
"sales execution in ," a brand communications company that executed "brand activations and 
marketing events," and a product development agency that developed packaging and product design . 
While we do not doubt that contractors relieved the Beneficiary from involvement in certain sales 
and marketing functions, the minimal information and evidence provided does not establish how 
these four contractors performed most of the non-executive tasks associated with the foreign entity's 
sales and marketing activities. For example, the Petitioner stated that the Beneficiary was 
responsible for sales in the United States and Europe while employed abroad, but the sole contracted 
sales executive was responsible for sales in Australia. It is not clear who, if anyone, assisted the 
Beneficiary with sales outside of Australia. The Petitioner has not provided an organizational chart 
for the foreign entity or explained who performed the company's other daily operational and 
administrative functions during the Beneficiary's period of employment abroad. 
Without a description of the Beneficiary's specific job duties or a complete picture of the company's 
structure and staffing levels, we cannot determine that the Beneficiary performed primarily 
executive duties abroad or that the foreign entity was able to support an executive position. Again, 
the fact that the Beneficiary directed the business or a component of the business does not 
necessarily establish eligibility for classification as an intracompany transferee in an executive 
capacity within the meaning of the statutory definition. By statute, eligibility for this classification 
requires that the duties of a position be "primarily" executive nature. Section 10l(a)(44)(B) of the 
Act. 
The evidence submitted on appeal does not overcome the Director's findings with respect to this 
issue. 
IV. CONCLUSION 
The appeal will be dismissed because the Petitioner did not establish that it will employ the 
Beneficiary in an executive capacity under the extended petition, or that the Beneficiary was 
employed abroad in an executive capacity . 
ORDER: The appeal is dismissed . 
Cite as Mauer of B-W-, Inc., ID# 1305982 (AAO Aug. 9, 2018) 
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