dismissed L-1A Case: Clothing And Fabrics Distribution

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-&S-T-C- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 16, 2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an importer and distributor of clothing and fabrics, seeks to temporarily employ the 
Beneficiary as its CEO/President under the L-1 A 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 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 denied the petition, concluding that the record did not 
establish, as required, that it would employ the Beneficiary in an executive capacity.1 
On appeal, the Petitioner asserts that the Director's decision is "erroneous and against the weight of 
evidence." It emphasizes that the Beneficiary was previously granted L-1 A status for the same 
position2 and explains that he "was not able to stay enough time to setup the United States office and 
take the operations to the next level." 
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 
1 The Petitioner has consistently that the Beneficiary will be employed in the United States in an executive capacity and 
did not claim that the Beneficiary would be employed in a managerial capacity. Therefore, the Director's decision 
focused only on the Petitioner's executive capacity claim. 
2 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
October 15, 2015, until October 14, 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)(1 )(ii)(F). The 
Petitioner filed this petition in July 2017 and it did not file it as a continuation or extension of the previously approved 
petition. 
Matter of A-&S-T-C- Inc. 
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 10l(a)(44)(B) of the Act. 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner established that it will employ the 
Beneficiary in an executive 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. § 214.2(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 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 business, its 
staffing levels, and its organizational structure. 
A. Duties 
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 at 1533. 
The Petitioner stated that Beneficiary's duties as CEO/president will be "entirely executive" in 
nature and that he will be "responsible to oversee and direct the senior management of the 
organization." It listed his proposed duties as follows: 
• Is responsible to [sic] setting up strategy and vision for [the Petitioner] in order to 
promote our product and increase our market share in the United States; 
• Is responsible to formulate and implement company's policies and procedures to 
meet the long term goals of increasing market share and profitability for our 
products; responsible to develop and formulate company's marketing, profit, 
credit, etc. policies; 
• Is responsible to hire, guide and terminate Senior Management team for [the 
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Matter of A-&S-T-C- Jnc. 
Petitioner]; to oversee the functions of senior management; review and evaluate 
the progress and modify the strategy; 
• Is responsible to coordinate with [ the foreign affiliate' s] senior executives 
regarding the activities of [the Petitioner]; 
• Is responsible to represent [the Petitioner] and negotiate and approve the contracts 
and grant credit line to the US Customers; 
• In addition, the beneficiary has been vested with wide discretionary powers in 
regard to [the Petitioner] including financial matters[.] 
.Many elements of this description are paraphrased from the statutory definition of executive 
capacity, and therefore do not explain how the Beneficiary would primarily spend his time within the 
context of the Petitioner's business. For example, duties such as "setting up strategy and vision," 
formulating company policies and goals, and holding "wide discretionary powers," could apply to 
any senior employee in any company and do not provide insight into the nature of the Beneficiary's 
expected day-to-day tasks. 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). 
Further, the Beneficiary's responsibilities for representing the company to U.S. customers, 
negotiating contracts, and coordinating unspecified "activities" with the foreign affiliate are now 
well-defined and, without further explanation, could include non-executive operational functions 
associated with the company's sales, sourcing, logistics, and promotional activities. 
In a request for evidence (RFE), the Director advised the Petitioner that the duties were too broad to 
establish what the Beneficiary will do on a daily basis. The Director requested a more detailed 
description of the Beneficiary's duties, as well as the percentage of time he is expected to spend on 
each task so it could be determined how much of his time would be allocated to qualifying executive 
duties. The Petitioner's response included the following description: 
1. As a President of [the Petitioner], [the Beneficiary] is responsible to develop 
business strategy and vision ... in order to promote our products and increase our 
market share in the United States for the next three years as well as longer term 
business strategy and vision ... ; 
2. [The Beneficiary] is responsible to formulate [the Petitioner's] administrative 
policies and direct the administration to communicate effectively to the 
subordinate staff; 
3. [The Beneficiary] is also responsible to develop short term marketing strategy for 
the next year; develop strategy to create and build brand name to market with our 
own brand names as well as selling on white label to chains; develop and assess 
the viability of long-term marketing strategy including building franchise model, 
model stores, shared space model; developing marketing strategy to hire 
professional marketing firms to develop the brand image and achieve maximum 
sales growth ... ; 
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Matter of A-&S-T-C- Inc. 
4. [The Beneficiary] is also responsible for analyzing and directing and overseeing 
the financial activities of the Petitioner; ... responsible to review the company's 
financial statements prepared by Certified Public Accountant and asses[s] the 
financial risk of loss & profit statements regularly ... and exercise his financial 
discretion in allocating the funds as required; 
5. [The Beneficiary] is responsible to review the progress with Administrative 
Manager and Marketing Manage[r] and Vice President and advise them as 
needed. 
The Petitioner's response to the RFE did not add the requested specificity or details regarding the 
nature of the Beneficiary's expected day-to-day tasks. The description conveys the Beneficiary's 
authority over the Petitioner's business, but does not clarify what he will do as part of his daily routine. 
The Petitioner emphasizes the Beneficiary's development of policies, strategies, and higher level 
operational planning activities, but does not provide sufficient information to support a finding that he 
would focus primarily on these duties. The Beneficiary's responsibility for overall financial 
management of the company is described in similarly vague terms. 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 actual duties themselves will reveal the 
true nature of the employment. Fedin Bros., 724 F. Supp. at 1108, aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Further, the Petitioner's response to the RFE revised the initial job description rather than elaborating 
on that description as requested. As noted, the Petitioner initially stated that the Beneficiary would be 
representing the company to U.S. customers, negotiating contracts, and coordinating activities with the 
Petitioner's foreign affiliate, but these responsibilities, which cannot be clearly classified as executive 
in nature, were removed from the subsequent version of the job description without explanation. 
Overall, the position descriptions in the record are vague and do not establish what proportion of the 
Beneficiary's duties will be executive in nature, and what proportion will be non-executive See 
Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
The fact that the Beneficiary will direct the business as its owner and senior employee 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. As discussed further below, the record does 
not contain sufficient information regarding the nature of the work performed by the Beneficiary's 
subordinates and we cannot determine to what extent those employees would assist him with 
operational activities such as sales, marketing, purchasing, logistics, and day-to-day administrative and 
financial duties. Without a clear picture of how work is allocated among the company's employees, 
the Petitioner's claim that the Beneficiary will spend his time primarily on higher-level planning, 
strategy, and decision-making functions is not adequately supported in the record. 
B. 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. 
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Matter of A-&S-T-C- 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. 
The Petitioner indicated that it has three employees and submitted an organizational chart that 
depicts a vice president who reports to the Beneficiary and currently supervises an administrative 
manager. The chart depicts an office secretary, a trucking company, and an outsourced accounting 
and bookkeeping service provide who report to the administrative manager. The chart also shows 
future positions for a sales manager, a designer, and sales and marketing representatives. There is a 
note on the chart stating that the roles of sales manager and designer are currently filled by "offshore 
resources." 3 
The Petitioner provided evidence of wages paid to its three employees. The vice president earned 
$64,163 in 2016, but was being paid a $35,000 salary in 2017. The administrative manager and office 
secretary were receiving wages commensurate with part-time hourly work and earned $6096 and 
$5880, respectively, in the first six months of 2017. Although requested by the Director in the RFE, 
the Petitioner did not provide job descriptions for the Beneficiary's U.S. subordinates and therefore did 
not support its claim that one or more of the subordinates hold managerial positions. The Petitioner's 
evidence must substantiate that the duties of the Beneficiary and his subordinates correspond to their 
placement in an organization's structural hierarchy; job titles alone are not probative and will not 
establish that an organization is sufficiently complex to support an executive position. 
Because it did not provide information regarding the duties performed by its current employees and 
"offshore resources," the Petitioner did not meet its burden to show how the Beneficiary would be 
relieved from involvement in the day-to-day operations of the company's import, sales, and 
distribution company. The Petitioner has not shown that it had the staff needed to support the 
Beneficiary in an executive role in which he would reasonably be required to focus primarily on the 
broad goals and policies of the company. 
As noted, we must take into account the reasonable needs of the organization and a company's size 
alone may not be the only factor in determining whether the Beneficiary is or would be employed in 
a managerial or executive capacity. See section 101(a)(44)(C) of the Act. However, it is appropriate 
to consider the size of the petitioning company in conjunction with other relevant factors, such as the 
3 The organizational chart for the Petitioner's foreign affiliate identifies two "sales and marketing managers" in its export 
and distribution department, but there are no designers identified on the chart. The Petitioner did not identify these 
"offshore resources" by name or job title, nor did it describe or document the nature or scope of any services they 
provide for the U.S. company. 
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Matter of A-&S-T-C- Jnc. 
absence of employees who would perform the non-managerial or non-executive operations of the 
company. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. 
Supp. 2d 7, 15 (D.D.C. 2001). Here, the Petitioner did not explain who is performing most of the 
day-to-day operations of the company and did adequately support a claim that the Beneficiary would 
be relieved from involvement in those operations upon his transfer to the United States. 
The Petitioner emphasizes that the Beneficiary was previously granted L-IA status to develop its 
new office, but was not able to remain in the United States due to the passing of two of his family 
members in the first half of 2016. Specifically, the Petitioner asserts that the Beneficiary "was not 
able to stay enough time to setup the United States office and take the operations to the next level," 
and states that the Director did not take these circumstances into consideration. 
However, the Director, while acknowledging the unfortunate circumstances surrounding the 
Beneficiary's early departure from the United States, explained that the Petitioner is no longer a 
"new office" or eligible for the accommodations afforded to new offices. 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. Since the Petitioner no longer qualifies as a 
new office, it must establish with this petition that all eligibility requirements for the immigration 
benefit have been satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. 
§ 103.2(b)(l). 
The Petitioner suggests that the enterprise remains in a preliminary stage of organizational 
development due to the Beneficiary's inability to remain in the United States for the duration of his 
prior petition. However, the Petitioner's 20 I 5 federal tax return shows nearly $3 million in gross 
sales for the year ended March 2016, and the Petitioner also emphasizes that it hired a vice president 
in place during that initial year of operations who remains with the company. While the Petitioner 
may have opted to delay hiring additional lower level staff while the Beneficiary was absent, the 
company has been established and doing business for well over one year and is not relieved from 
meeting the statutory requirements applicable to established U.S. companies. 
The Petitioner has consistently stated that the Beneficiary will occupy the senior position in the 
company, but has not submitted a job description or supporting evidence sufficient to demonstrate 
that he would primarily perform executive duties consistent with section 101(a)(44)(B) of the Act. 
III. CONCLUSION 
The appeal will be dismissed because the Petitioner did not establish that the Beneficiary will be 
employed in the United States in an executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-&S-T-C- Inc., ID# 1274680 (AAO Aug. 16, 2018) 
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