dismissed L-1A Case: Biometrics

U.S. Citizenship 
and Immigration 
Services 
In Re: 12460488 
Appeal of California Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (L-lA) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 23, 2021 
The Petitioner, a biometric system manufacturing company, seeks to temporarily employ the Beneficiary 
as its chief executive officer under the L-lA nonimmigrant classification for intracompany transferees. 
Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary was employed in a managerial or executive capacity abroad 
or would be employed in a managerial or executive capacity in the United States. On appeal, the 
Petitioner asserts that the Director did not review the totality of the record, thus the decision was made 
in error. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence.1 
We review the questions in this matter de novo.2 Upon de nova review, we will dismiss the appeal. 
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)(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 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). 
The term "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 
1 See Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Chri sta's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
from higher-level executives, the board of directors, or stockholders of the organization. Section 
101(a)(44)(B) of the Act. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The issue we will address in this matter is whether the Petitioner established that the Beneficiary would 
be employed in an executive capacity in the United States. The Petitioner does not claim that the 
Beneficiary would be employed in a managerial capacity. Therefore, we restrict our analysis to the 
Beneficiary's employment in an executive capacity for the U.S. office. 
Based on the definition of executive capacity, the Petitioner must first show that the Beneficiary will 
perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 
1991) (unpublished table decision). Second, the Petitioner must prove that the Beneficiary will be 
primarily engaged in executive duties, as opposed to ordinary operational activities alongside the 
Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d 1533. 
When examining the executive capacity of a given beneficiary, we review 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 an executive or managerial 
capacity. See 8 C.F.R. § 214.2(I)(3)(ii). Beyond the required description of the job duties, we examine 
the company's organizational structure, the duties of a beneficiary's subordinate employees, the 
presence of other employees to relieve a beneficiary from performing operational duties, the nature of 
the business, and any other factors that will contribute to understanding a beneficiary's actual duties 
and role in a business. Accordingly, we will discuss evidence regarding the Beneficiary's job duties 
along with evidence of the nature of the Petitioner's business, its staffing levels, and its organizational 
structure. 
The Petitioner was established in the United States in 2016 to market and sell its biometric access 
control systems in the United States. The company's organizational chart reflects that the U.S. office 
is staffed with a business development director, two U.S. salespersons, an ambiguous number of sales 
support employees, 3 and a marketing and communication person. 4 The Petitioner's Korean branch 
office was formally established in December 2017. It is staffed with "experienced engineers" and 
divisions which include development and procurement, business development and IR [investment 
relations], planning, marketing operations, and corporate resources management. In a September 26, 
2019 executives meeting at the Korean branch office regarding a 2020 organizational change, the 
Beneficiary noted the "current US performance is poor" and indicated his desire to move to the U.S. 
to "work with U.S staffs [sic] and have a good communication with Korea." 
3 The organizational chart names one individual in this role and then adds "2 staff" under the individual's name. It is not 
clear if the Petitioner claims to employ two or three individuals in this role. 
4 The record does not include corroborating evidence that these individuals were employed when the petition was filed in 
January 2020. Although the record includes the Form 941, Employer's Quarterly Federal Tax Return, for the third quarter 
of 2019, this document reflects the employment of five individuals. The record does not include the names of the 
individuals employed in the third quarter of 2019, and further does not include additional quarterly reports more relevant 
to the time period the petition was filed. 
2 
In support of the organizational change, the Petitioner filed this petition on behalf of the Beneficiary 
on January 22, 2020. In support of the petition, the Petitioner submitted a broad overview of the 
Beneficiary's proposed duties in the U.S. position as follows: 
I Preside over weekly sales meeting 35% 
- Determine Sales standard policy 
- Review Sales progress by,......I -~----.l I I, andl.___ __ ___. 
- Determine terms and conditions on contracts and price 
I Monitor and Control sales plan 15% 
- Review monthly and annual sales plan prepared b~ I 
- Review and Monitor budget and expense prepared b~ I 
- Approve Sales projects 
I Determine and Participate [in] Marketing activity plan 30% 
- Review Exhibition plan prepared byl I 
- Review Promotional material prepared b~~---~ 
- Review and Approve Marketing budget and expense 
- Participate in Exhibitions and Interview with various media 
I Monitor and Control operation 20% 
- Review and Monitor weekly sales and operation reports prepared by Korea 
branch 
- Have authority to evaluate and to hire or fire employees 
- Determine salaries 
The Petitioner noted in response to the Director's request for evidence (RFE), that the Beneficiary 
would make decisions regarding managing resources of the company, including securing funds and 
redistributing job duties, and would be more active in business development supporting the U.S. 
employees so that they could focus on field business development and sales activities in the United 
States. The Petitioner also changed the allocation of the Beneficiary's time and focus of his duties as 
follows (verbatim): 
The percentage of his duties will be 10% supervising subordinates, including hiring 
employees in the USA, 40% focusing on sales & marketing of products, 20% raising 
investment to expand business, 10% Business Development and Operation with change 
of the organizational structure, and 10% Other managing the organization or reporting 
to the Board of Directors as well. 
This allocation of the Beneficiary's time totals 90%. The Petitioner does not account for the 
Beneficiary's responsibilities for the other 10% of time. Moreover, the Petitioner revises the duties 
by adding that the Beneficiary will spend 10 percent of time supervising subordinates and 20 percent 
raising investments to expand the business. The purpose of the RFE is to elicit further information 
that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). 
When responding to an RFE, a petitioner cannot offer a new position to a beneficiary, or materially 
change a position's title, its level of authority within the organizational hierarchy, or its associated job 
responsibilities. A petitioner must establish that the position offered to a beneficiary, when the petition 
was filed, merits classification as a managerial or executive position. See Matter of Michelin Tire 
Corp., 17 l&N Dec. 248, 249 (Reg'I Comm'r 1978). If significant changes are made to the initial 
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request for approval, a petitioner must file a new petition rather than seek approval of a petition that 
is not supported by the facts in the record. The information provided by the Petitioner in its response 
to the Director's RFE did not clarify or provide more specificity to the original duties of the position, 
but rather added new duties to the job description. 
Further, both of the Beneficiary's duty descriptions are nonspecific and provide little insight into his 
actual day-to-day tasks. In fact, the Beneficiary's duty description includes no specific references to 
its type of business or credible examples of his activities. The descriptions are repetitive, and the 
Petitioner does not detail and sufficiently distinguish tasks related to reviewing sales progress of the 
sales team and reviewing the monthly and annual sales plan or determining terms and conditions on 
contracts and price and reviewing a budget and expenses. The Petitioner claims that the Beneficiary 
would be involved in U.S. sales and marketing, would participate in exhibitions, and would raise 
investment funds, but these overly broad tasks are insufficiently described and do not establish the 
need for or the extent of the Beneficiary's daily involvement in the U.S. business operations in an 
executive capacity. The perfunctory descriptions, without more, suggest that the Beneficiary will be 
performing primarily operational tasks to increase sales and expand the business. 
It is also notable that the Petitioner provided little detail or documentation with respect to the current 
state of the U.S. office or how the Beneficiary would increase sales, develop the business, or otherwise 
manage the U.S. office resources. Although the Beneficiary may review and approve sales plans and 
projects, budgets and expenses, and review an exhibition plan and promotional material as well as the 
marketing budget and expense, these responsibilities do not include the necessary detail to credibly 
convey his role within the business. Additionally, other than noting that a portion of the Beneficiary's 
35 percent of time spent presiding over weekly sales meetings would include determining sales 
standards, the Petitioner does not expand on what goals or policies he would establish. Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive or managerial 
in nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 
1990). 
The Petitioner also states that upon the Beneficiary's move to the U.S. office, he "will focus more on 
business development to boost sales" and will reorganize the U.S. staff, reducing the current business 
development director's role to supervising two salespersons and having responsibility for east coast 
sales and other operational tasks. The record also includes brief descriptions of the claimed U.S. 
employees' positions however, the descriptions are vague and insufficient to conclude that the 
subordinates perform duties other than operational tasks related to sales and marketing. Moreover, 
although the Petitioner claims on the Form 1-129, Petition for a Nonimmigrant, that the U.S. office 
employs six individuals, the Petitioner does not include evidence corroborating the employment of 
these individuals when the petition was filed. 
While there is no required number of employees within a business to establish that a beneficiary acts 
in an executive capacity, a close analysis of the Petitioner's staffing levels shows that the Beneficiary 
would not primarily focus on directing the management of the U.S. operation. Rather the description 
of his duties shows he would focus on the day-to-day sales, marketing, and business development of 
the business. 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 
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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 the beneficiary must 
primarily focus on the broad goals and policies of the organization rather than the day-to-day 
operations of the enterprise. An individual will not be deemed an executive under the statute simply 
because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial or executive 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." Id. In this matter, the record does not 
demonstrate that the U.S. business is sufficiently complex so that the Beneficiary's duties would 
primarily encompass executive-level tasks, rather than his routine participation in the day-to-day 
operational tasks of the business. 
On appeal, the Petitioner asserts that the Director did not consider the documentation submitted which 
supports the Beneficiary's executive capacity. However, the documentation submitted refers to his 
activities as chief executive officer at the Petitioner's foreign branch. The Petitioner does not explain 
how this documentation demonstrates what duties the Beneficiary would perform on behalf of the U.S. 
office. Further, although the Petitioner indicates that an unspecified portion of 20 percent of the 
Beneficiary's time at the U.S. office spent monitoring and controlling operations would include 
reviewing and monitoring the Korean branch's weekly sales and operations reports, the Petitioner does 
not otherwise refer to the Beneficiary's daily business activities as involving the operations of the 
Korean branch. 5 Here, the record is too meager to ascertain or analyze the Beneficiary's role within 
the organization as a whole and more specifically demonstrate that he would devote his time primarily 
to executive-level tasks for the U.S. office under an approved petition. 
Even though a beneficiary holds a senior position within an organization, the fact that they 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 section 101(a)(44)(B) of the Act. By statute, 
eligibility for this classification requires that the duties of a position be "primarily" managerial or 
executive in nature. Id. The Beneficiary may exercise discretion over the Petitioner's day-to-day 
operations and possess the requisite level of authority with respect to discretionary decision-making; 
however, the record is insufficient to demonstrate that the Beneficiary would act in an elevated position 
within a complex organizational hierarchy and that he would be primarily tasked with directing the 
management of the organization and establishing the goals and policies of the organization. 
Reviewing the totality of the record regarding the Petitioner's U.S. office, including the inconsistent 
time allocation and descriptions, it is not possible to conclude that the Beneficiary's role at the U.S. 
office would be primarily executive in nature. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary would act in an 
executive capacity in the United States under an approved petition. 
5 The record does not include sufficient detail or evidence demonstrating that the Beneficiary will be involved in directing 
the management of the foreign branch of the Petitioner while he is based in the United States. 
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111. CONCLUSION 
The appeal will be dismissed as the Petitioner has not established it is more likely than not that the 
Beneficiary will be employed in a managerial or executive capacity for the U.S. entity. Since this 
identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby 
reserve its arguments regarding whether the Beneficiary acted in an executive capacity in his position 
abroad. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to 
make findings on issues the decision of which is unnecessary to the results they reach"); see also 
Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 {BIA 2015) (declining to reach alternative issues on 
appeal where an applicant is otherwise ineligible). 
ORDER: The appeal is dismissed. 
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