dismissed L-1A Case: Car Wash

U.S. Citizenship 
and Immigration 
Services 
MATTER OF FCSO-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 27. 2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner operates a car wash in which it holds a 50% ownership interest. The Petitioner seeks 
to extend the Beneficiary· s temporary employment 1 as its president and chief executive officer (CEO) 
under the L-lA nonimmigrant classification for intracompany transferees. See Immigration and 
Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. ~ IIOI(a)(l5)(L). TheL-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 record did not 
establish. as required, that it will employ the Beneficiary in the United States in a managerial or 
executive capacity. 
The matter is now before us on appeal. On appeal, the Petitioner asserts that the Director erred 
because the Petitioner has met its burden of proof to establish that it will employ the Beneficiary in 
an executive capacity. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for theL-IA nonimmigrant visa classification for a new office. a qualifying 
organization must have employed the beneficiary in a managerial or executive capacity for one 
continuous year within three years preceding the beneficiary's application for admission into the 
United States. Section I 01 (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. I d. 
'The Petitioner previously filed a "new oftlce·· petition on the Beneficiary's behalf, approved for the period from June I. 
2016, until May 31. 2017. A ·•new otlice .. 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)(1)(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 suppmi an 
executive or managerial position. 
.
Maller <d'FC5X)-. LLC 
A petitioner seeking to extend an L-lA petition that involv ed a new otlice must submit a statement 
of the beneficiary's duties during the previous year and under the exte nded petition ; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held : 
evidence of its 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). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity. The Petitioner does not claim that it will employ the Beneficiary 
in a managerial capacity. Therefore, we restrict our analysis to whether the Petitioner will employ 
the Beneficiary in an executive capacity . 
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 director s. or sto ckholder s of the organization. Section 
101(a)(44)(B) ofthe Act. 
If staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity , U.S. Citizenship and Immi gration 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 01 (a)( 44 )(C) of the Act. 
A . Duties 
When examining the claimed executive capacity of the Beneficiary , we will review the Petitioner's 
description of the Beneficiary ' s job duties . The Petitioner's descr iption of the job duti es must 
clearly describe the duties to be performed by the Beneficiary and indicat e whether such dutie s are in 
a managerial or executive capacity. See 8 C.F.R. ~ 214.2(1)(3)(ii). 
The definition of executive capacity has two parts. First the Petitioner must show that the 
Ben efici ary will pertorm certain high-le ve l 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 dutie s. as opposed to ordinary operational 
act iviti es alongside the Petitioner's other employees. ,C:,'ee Family Inc. v. USCIS, 469 F.3d 1313, 
1316 (9th Cir. 2006) : Champion World , 940 F.2d 1533. 
The Petitioner owns a 50% ownership interes t in 
car wash that the Petitioner operates. 
2 
which in turn owns the 
operating agreement, as amended on 
Matter of FCSO-. LLC 
October 31, 2016, specified that the Beneficiary would be the company's sole manager. with ··full 
and complete power. authority. and discretion" over the car wash business. 
The Petitioner listed the Beneficiary's responsibilities. with the approximate time devoted to each. 
The Petitioner specified that the list applied to the Beneficiary's duties during the previous year and 
his intended duties under the extended petition. After the Director requested additional information. 
the Petitioner revised the list somevvhat. as shovvn below: 
• Direct the management of the company and direct operational activities of general 
manager and line supervisors (35%): 
• Direct the growth of the company. mainly through careful analysis of sales and 
marketing policies (15%): 
• Development and implementation of strategies designed to boost the company· s 
market position ( 1 0% ): 
• Establish goals and policies of the business vvith focus on grow1h and 
improvement of services (I 0% ): 
• Meet with vendors and determine best products to acquire (5%): 
• Evaluate and determining pricing policies for services to increase profit margins 
(I 0%): 
• Oversee company's long-term business vision, which includes overall purpose of 
the company and its long-term business plan (10%): and 
• Identify and hire subordinate staff to manage day-to-day functions and 
management positions should they become necessary (5%). 
In the denial notice. the Director found that several elements of the job description "'simply 
paraphrase statute... asserting that the Beneficiary has broad authority over the company but 
providing little information as to how he exercises that authority. The Director concluded that the 
job description was too general to establish that the Petitioner will employ the Beneficiary primarily 
in an executive capacity. 
On appeaL the Petitioner restates the job description submitted previously. first by paraphrasing it 
and then by repeating it word for word. The Petitioner states that the job description is "not overly 
general or vague," but that it ''clearly describes duties that arc executive in nature." 
The record does not support the Petitioner's assertion that the job description has sufticient detail. 
The Director advised the Petitioner that more specifics were necessary. and the Petitioner responded 
by revising the wording without significantly expanding it. 
The Petitioner asserts that the Director did not explain how the job description is deficient. We will 
address that point here. The Petitioner listed the Beneficiary's major duty as directing the 
management of the company. which. as the Director noted. derives almost verbatim from the 
statutory definition of executive capacity. See section I 01 (a)( 44 )(B )(i) of the Act. The Petitioner 
listed, as separate items. developing strategies. establishing goals and policies. and overseeing the 
Mallcr oj'FCSO-, LLC 
business vision and plan, but the Petitioner did not explain the distinction between these three areas. 
Furthermore, these arc general responsibilities rather than specific tasks the Beneficiary would 
perform to cany out those responsibilities. 
In addition. some of the assigned percentage figures appear to be inflated. The Petitioner states that 
the Beneficiary would devote I 0% of his time - several hours per week - to pricing policies. The 
record does not show how a car wash that sells a limited range of related products would regularly 
demand that much of the Beneficiary's time. The Petitioner claimed that the Beneficiary spends 
even more time, 15%. analyzing sales and marketing policies. The record does not show what those 
policies are or establish that they are sufficiently complex to warrant that level of sustained analysis. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fcdin 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 actual duties themselves reveal the true nature of the employment. /d. 
Therefore. reciting a 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 asserts that the Beneficiary '"is not responsible for washing cars or handling any of the 
operations associated with washing cars:' but there are other non-executive aspects of the business 
that the Petitioner has not allocated to other employees. such as administrative or clerical functions. 
The Petitioner refers to marketing but has not shown who is responsible for actual marketing tasks, 
which are not executive in nature. 
We acknowledge the Beneficiary's stated authority over hiring and other personnel actions. but that 
authority falls within the definition of manageriaL rather than executive, capacity. The Beneficiary's 
position must meet all elements of one or the other definition, rather than combining aspects of both. 
The record establishes that the Beneficiary oversees a functioning car wash, but does not show how 
he would primarily spend his time on the overly broad responsibilities listed in the job description. 
The Petitioner did not show that the Beneficiary's actual duties will be primarily executive in nature. 
B. Staf1ing 
Beyond the required description of the job duties. USCIS reviews the totality of the record when 
examining a beneficiary's claimed executive capacity. 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 Petitioner indicated that it had 19 employees at the time of tiling; payroll records show that this 
number fluctuates somewhat due to a high rate of turnover. A subsequent organizational chart 
showed the following structure: 
4 
Matter of FCSO-. LLC 
President/CEO l the Beneficiary] 
General Manager 
Line Supervisor Detail Supervisor 
I I 
9 Line Personnel 3 Detail Personnel 
Co-Owner 
Support Services: 
3 Paystation 
I Store 
3 Prepping 
The Petitioner initially stated that the general manager was responsible for ··Daily and weekly 
planning and labor management. [and] Personnel Recruitment." 
The Director asked the Petitioner to establish that some of the subordinate positions are managerial 
or executive. In response, the Petitioner asserted that it "'has the necessary stat1ing levels for [the 
Beneficiary J to only perform qualifying executive [tasks]:· and that the "General Manager ... is 
responsible for overseeing the work of the Line Supervisor. Detail Supervisor. and Support 
Services:· The Petitioner provided no futiher details. 
In the denial notice. the Director found that the Petitioner had not established that its starting 
structure was sufficient to support an executive position. The Director noted that the Petitioner had 
not provided detailed job descriptions for any of the positions subordinate to the Beneficiary. and 
therefore the Petitioner had not shown how those positions relieve the Beneficiary from primarily 
performing non-qualifying operational or administrative tasks. 
On appeal. the Petitioner asserts that the ''car wash ... cannot effectively operate without an 
executive to direct subordinate employees who perform day-to-day functions."' This argument 
presumes that the Petitioner's business requires executive leadership. The Director did not contend 
that the car wash employees should work without supervision. but supervision can take the torm of a 
supervisor. a manager. or an executive. It is the Petitioner's burden to show how its car wash 
business is able to support the Beneficiary in a position that requires him to primarily perform duties 
that fall within the statutory definition of ''executive capacity.'' The fact that the Beneficiary will 
manage or direct the business as its senior employee does not necessarily establish eligibility for 
classification as an intracompany transferee in an executive capacity within the meaning of section 
IOI(a)(44)(B) of the Act. 
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)(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 a beneficiary must 
primarily focus on the broad goals and policies of the organization rather than the day-to-day 
operations of the enterprise. 
Matter ojFCSO-. LI.C 
In this instance, the Petitioner has identified a general manager between the Beneficiary and the first­
line supervisors, but the Petitioner has not provided enough information about the general manager's 
position to show that it is truly managerial rather than supervisory. 
The Petitioner states that it previously "provided a list of its 18 employees. their job descriptions and 
salaries." The record shows that the Petitioner listed its employees by job title \vith very briefjob 
descriptions. The Petitioner does not quote any subordinate job descriptions on appeaL apart from a 
brief statement of the hierarchy from general manager to supervisors and the cursory assertion that 
the subordinates relieve the Beneficiary from having to perform lower-level operational duties. In 
fact, the referenced employee list summarizes the Beneficiary's own duties as "Strategic Planning, 
Marketing, Maintenance. and Administration.'' We note that the Petitioner docs not attribute any 
marketing. maintenance, or administrative duties to other employees. Based on the limited 
information provided, the record reflects that the Beneficiary likely performs these non-executive 
duties, but does not indicate how much time he spends on them. 
In sum, while it does not appear that the Beneficiary washes cars or runs the cash register, the 
Petitioner has not at1irmatively established that the functions the Beneficiary does perform are 
primarily those of an executive. Rather. there are a number of non-executive functions, such as 
administrative and marketing functions, that the Beneiiciary does not delegate to subordinate staJT 
The totality of the evidence docs not show how the Beneficiary is relieved from significant 
involvement in the day-to-day operations of the business so that he can primarily devote his time to 
executive duties. 
lii. CONCLUSION 
The Petitioner has not established that it will employ the Beneiiciary in an executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter o/FCSO-. LLC, ID# 981542 (AAO Feb. 27, 2018)