dismissed L-1A Case: Cleaning Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OFF-USA, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 31,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a home and office cleaning service, seeks to extend the Beneficiary's temporary 
employment1 as its president under the L-IA nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. 
§ 1101(a)(15)(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 record did not 
establish, as required, that the Petitioner will employ the Beneficiary in the United States in an 
executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred by 
not giving full consideration to the information and evidence in the record. 
Upon de novo 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 IOI(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. !d. 
1 
The Petitioner previously filed a "new office" petition on the Beneficiary's behalf, approved for the year ending April 
23, 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)( I )(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 ofF- USA, LLC 
There are additional requirements when a petitioner seeks to extend an L-1 A visa petition that 
involved the opening of a new office. The new petition must include evidence to show: a qualifying 
relationship still exists between the employers in the United States and abroad; the U.S. entity has 
been doing business for the previous year; and the financial status of the U.S. operation. The 
petitioner must also submit statements describing the beneficiary's past and intended future duties in 
the United States, and details ofthe staffing ofthe new operation. See 8 C.F.R. § 214.2(1)(14)(ii). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that it will 
employ the Beneficiary in an executive capacity. Because the Petitioner has specified that the 
position is an executive capacity, we need not consider the separate requirements for a managerial 
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 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 01 (a)( 44 )(C) of the Act. 
A. Duties 
When examining whether a beneficiary works in an executive capacity, we will look first to the 
petitioner's description of the beneficiary's 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 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 
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. 
The Petitioner described the Beneficiary's duties in the United States, with the approximate percentage 
of time the Beneficiary devotes to each responsibility: 
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Matter of F-U'iA, LLC 
1. Oversees the work of Operations Manager and Service/Sales Manager for 
compliance with the established policies and objectives of the company (20%) 
o [The Beneficiary] directs weekly meetings with [the Petitioner's] Operations 
Manager ... , to assure that the company's fiscal and productivity objectives are 
being met. 
o Reviews Operations Manager's weekly reports to determine productivity of the 
cleaning and maintenance work performed. 
2. Establishes the goals and policies of [the petitioning company] (5%) 
o Increase company recognition throughout Florida via marketing strategy; for 
example, advertising in local publications .... 
3. Directs, plans or coordinates the organization[']s financial and budget activities to 
fund operations, maximize investments, or increase efficiency and prepare detailed 
reports concerning those activities, expenses, budgets and other items affecting the 
business during [the Petitioner's] monthly meetings (20%) 
4. Monitors revenues and profits in order to develop and market additional services 
offered to potential residential and commercial clientele (5%) 
o In December of each year, [the Beneficiary] reviews the revenues and profits of 
that preceding year and determines the following year[']s budget. 
5. Decides budget for the company (5%) 
o In December of each year, [the Beneficiary] determines the budget for the 
following year and allocates Money to additional company cars. employee 
uniforms, advertising, increase in staff~ increase in supplies, and change in 
suppliers and vendors. 
6. Reviews financial statements and budget reports including those for funding for fthe 
petitioning company] (5%) 
7. Presides over and serves on [the foreign parent company's] Board of Directors (5%) 
8. Maintains direct contact with foreign entity ... (5%) 
9. Responsible for development, employment, and marketing plan (5%) 
10. Implements corrective action plans to solve organizational and departmental 
problems (5%) 
11. Reviews and gives final approval to contracts and agreements with commercial 
customers, suppliers, contractors, and other entities as negotiated by managers ( 5%) 
o Compares prices of current suppliers ... with competitors to determine whether the 
supplier[']s prices are in line with that year[']s designated budget 
o Negotiates prices with [suppliers] based on increase of prices 
o Negotiates and approves contracts with commercial clientele .... 
12. Direct, plan, and implement policies, objectives, and activities of [the Petitioner] in 
order to ensure continuing growing operations in order to maximize returns on 
investments and to increase productivity ( 10%) 
o Makes final expansion decision based on target clientele such as businesses that operate 
in large commercial buildings with multiple suites and restrooms 
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Matter ofF-USA, LLC 
o Upon [the Beneficiary's] final expansion decisions, she then tasks the Sales and Service 
Manager to implement the strategy and services per the particular client[']s 
specifications. 
13. Direct human resources activities, including the hiring of more employees for 
company expansion, firing employees, and establishment of departments within [the 
petitioning company] (5%) 
The Director denied the petition, stating: 
The above listed duties are broadly cast and not probative of the actual tasks performed 
on a regular and on-going basis. Rather, multiple items listed above seem I) to 
represent duties or responsibilities that would only need to be performed or fulfilled on 
an intermittent basis, 2) would be performed during the developmental stage of 
operations, and 3) overlap those previously described. 
On appeal, the Petitioner states that the Director "did not explain which of the duties which were of 
concern" and "did not address at all [the Beneficiary's] duties for the previous year." Because the 
Director found deficiencies in the Beneficiary's prospective duties which she would perform during 
the term of the extended stay, a discussion of the Beneficiary's earlier duties would not have led to 
approval of the petition. 
We acknowledge that the Director did not elaborate on the deficiencies in the Beneficiary's prospective 
job description, but the record supports the Director's basic finding. Setting the company's budget 
appears twice in the list of duties, in items 4 and 5. The Petitioner did not explain the difference 
between setting goals (item 2), making plans (item 9), and planning activities (item 12). At the time of 
filing, the company had only nine employees and a simple organizational structure, and therefore it is 
not evident that dealing with human resources and establishing departments would make significant 
ongoing demands on her time as claimed in item 13. 
The Petitioner states that the company services a growing number of customers, and therefore is poised 
to expand in size and complexity. The Petitioner must establish eligibility at the time of tiling the 
petition. See 8 C.F .R. § 103 .2(b )( 1 ). The expectation of future growth does not show that the 
Beneficiary's position was primarily executive when the Petitioner tiled the petition. 
B. Staffing 
Beyond the required description of the job duties, 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. 
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Matter ofF- USA, LLC 
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 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. 
Beyond the required description of the job duties, USC IS reviews the entire 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. 
On Form 1-129, the Petitioner stated that the company had 13 employees. That figure included 
several contractors. The Petitioner's organizational chart showed the following structure: 
Board of Directors 
I 
President [the Beneficiary] ---Executive/ Administrative Assistant 
I 
Operations Manager 
Services/Sales Manager 
[Contractor] 
I 
Crew Leader 
I 
5 Maid/Housekeeping 
[1 Contractor, 4 Employees] 
Accounting [Contractor] 
Floor, Carpet, Tile Maintenance 
[Contractor] 
Schedule/Personnel Manager 
Supplies/Purchase 
The Petitioner has asserted that the Beneficiary's position constitutes an executive capacity because 
she oversees managers. The Petitioner asserts that the operations manager has hiring and firing 
authority, and devotes 50% ofher time to overseeing the company's operations through her authority 
over subordinate employees and contractors. Parts of the operations manager's job description 
appear to have been adapted from generic templates. For example, the Petitioner stated that the 
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Matter ofF-USA, LLC 
Beneficiary spends 10% of her time coordinating and meeting with management, during which time 
she "[r]eviews, analyzes, and confers with managers/supervisors to obtain data required for planning 
activities, such as new housekeeping, cleaning and maintenance commitments, status of work in 
progress, and problems encountered." Because the operations manager would not review or analyze 
managers or supervisors, language appears to have been removed from the phrase. The 
organizational chart shows only one person (the crew leader) who could be considered a supervisor, 
so the plural reference to "supervisors" appears to be inapplicable or incorrect. 
Also, the time percentages in the job description do not appear to be realistic for a company of the 
Petitioner's size. In addition to spending 10% of her time coordinating and meeting with 
management, the operations manager purports to devote 15% of her time .. [r]eview[ing] and 
implement[ing] improvements to each function as well as coordination and communication between 
support and business functions." 
The Petitioner asserted that the services/sales manager oversees the service workers and has hiring 
and firing authority. The schedule and personnel manager establishes procedures and work 
schedules; supervises and records personnel actions such as appraisals and promotions; and 
organizes and provides training. 
The Director found the job descriptions for the subordinates lacked specificity, and that their 
responsibilities overlapped with the Petitioner's. The Director concluded that the Petitioner had not 
shown that it employs the Beneficiary primarily in an executive capacity. 
On appeal, the Petitioner contends that the subordinates' job descriptions were sufficient and 
consistent with the Beneficiary's stated role as an executive. The record does not fully support this 
assertion. For instance, on appeal the Petitioner states that the Beneficiary has the authority to 
"approve or disapprove of the hiring recommendations made to her by her managers." According to 
the job description, however, the services/sales manager "[h ]ires and fires Maid/Housekeeping 
personnel." There was no indication at the time that the services/sales manager merely 
recommended hiring and firing decisions, subject to the Beneficiary's review. Raising further 
questions, the maid/housekeeping personnel and the services/sales manager are on separate branches 
of the Petitioner's organizational chart. The Petitioner did not explain why a contractor holds this 
level of authority over employees who, according to the organizational chart, do not report to him. 
The Petitioner has documented its payments to other contractors, but the record does not show how 
much the Petitioner paid the contracted services/sales manager. That person's 2012 "Sales 
Agreement" indicated that he will "perform marketing services which shall include personal contact 
with p[ro ]spective customers, and provide or distribute advertisement for the company." It also 
stated that the individual would "manage the company's services'' but did not elaborate or refer to 
any specific, identifiable managerial or supervisory responsibilities. Instead of a fixed rate of 
compensation, "the Company shall pay to [the contractor] 15% of the gross receipts received from 
customers for which he made the initial contact." Overall, the sales agreement indicates that the 
services/sales manager is primarily a sales representative. Although the agreement is several years 
Matter ofF-USA, LLC 
older than the petition, the record contains no later superseding agreement that changed or added to 
the contractor's responsibilities. 
The Petitioner maintains that the Beneficiary spends the majority of her time on executive duties, but 
the Petitioner does not appear to have employed a full-time staff at the time it filed the petition. Tax 
and payroll records showed that the Petitioner paid nine employees the week it filed the petition. 
These records do not show the hours worked per week, but on the week the Petitioner filed the 
petition, each subordinate's weekly gross pay was between $100 and $310, averaging $203.69. That 
weekly average is consistent with less than 26 hours' pay at Florida's 2016 minimum wage of $8.05 
per hour. In 2015, the Petitioner paid 12 employees an average of $9,368.17; only one of the 
Beneficiary's subordinates (one of the housekeepers) earned more than $12,000 for the year.2 The 
operations manager earned $9,533, and the schedule and personnel manager earned $10,217 that 
year. Because the Beneficiary was the only employee earning a full-time salary. it appears that she 
spent a significant amount of time performing tasks that others were not there to perform for her. 
Noting the company's layered structure, the Petitioner asserts that the operations manager is a 
manager overseeing multiple divisions, rather than a first-line supervisor. The Petitioner is correct 
that overseeing lower-level managers is an element of the definition of executive capacity, but the 
record does not persuasively show that this oversight is one of the Petitioner's primary 
responsibilities. As noted above, the operations manager is a part-time employee. Most of the 
operations manager's weekly paychecks showed gross pay under $300, and some are below $200. 
The operations manager received $200 the week the Petitioner filed the petition. If the operations 
manager received the minimum wage (which would not appear to be consistent with a manager's 
compensation), this paycheck would represent less than 25 hours of work. If the operations manager 
received a higher hourly rate of pay, then she must have worked even fewer hours. We cannot 
resolve this issue because the "Hours" column in the Petitioner's payroll records consistently reads 
"0.00," so we cannot tell how long the operations manager worked or whether her pay correlates to 
time, to piecework, or to commissions. 
If the Petitioner pays the operations manager by commission rather than an hourly wage, this would 
explain the fluctuations in her pay from week to week, but it would also strongly suggest that she, 
too, is primarily a commissioned sales worker with nominal supervisory or managerial duties. 
Based on the deficiencies and inconsistencies discussed above, we find that the Petitioner has not 
met its burden of proof to establish eligibility for the benefit sought. 
2 
Although the approval of its initial nonimmigrant petition was delayed, by 2015 the Petitioner was no longer a "'new 
office" that had done business for less than one year; it began operations in 20 12, and paid over $1 00,000 per year in 
salaries in both 20 13 and 2014. 
Matter ofF-USA, LLC 
III. CONCLUSION 
The Petitioner did not establish that it will employ the Beneficiary in an executive capacity in the 
United States. 
ORDER: The appeal is dismissed. 
Cite as Matter ofF-USA, LLC, ID# 2573 70 (AAO Oct. 31, 20 17) 
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