dismissed L-1A Case: Clothing And Footwear

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 26530291 Date : MAY 22, 2023 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (L-lA Manager or Executive) 
The Petitioner, an importer and exporter of clothing and footwear, seeks to temporarily employ the 
Beneficiary as a chief executive officer under the L-lA nonimrnigrant classification for intracompany 
transferees . See 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 California Service Center denied the petition, concluding the record did not 
establish that the Beneficiary would be employed in a managerial or executive capacity. The matter 
is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&N Dec. 537 , 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility for the L-lA nonimrnigrant 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). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue we will address 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 
whether the Beneficiary would be employed in an executive capacity. 
"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 from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
When examining the executive capacity of a given beneficiary, we will 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 capacity. 
See 8 C.F.R. § 214.2(1)(3)(ii). 
A. Duties 
To be eligible for L-lA nonimmigrant visa classification as an executive, the Petitioner must show 
that the Beneficiary will perform the high-level responsibilities set forth in the statutory definition at 
section 10l(a)(44)(B)(i)-(iv) of the Act. Ifthe record does not establish that the offered position meets 
all four of these elements, we cannot conclude that it is a qualifying executive position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, the Petitioner must prove that the Beneficiary will be primarily engaged in executive duties, 
as opposed to ordinary operational activities alongside its other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006). In determining whether a given beneficiary's duties will be 
primarily executive, we consider the petitioner's description of the job duties, the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve the 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, the Beneficiary's foreign employer, stated that it formed a fashion design and sales 
business in I I 2020 called I I The Petitioner indicated that the Beneficiary 
would be tasked with overseeing and developing the U.S. company's operations as its chief executive 
officer. The Petitioner submitted duties for the Beneficiary in support of the petition, but the Director 
later issued a request for evidence (RFE) indicating that his duties were generic and lacked adequate 
detail as to what specific tasks he would perform daily. The Director requested that the Petitioner 
submit documentary evidence sufficiently describing the Beneficiary's typical executive-level duties 
and the percentage of time he would devote to each task. 
In response, the Petitioner submitted a letter from the president of the U.S. company stating that the 
Beneficiary would be "responsible for developing ourl Ilocation into a fully functioning 
sales, fulfillment, processing, product design, and procurement office for the company." The president 
further indicated that the Beneficiary would be tasked with "implementing strategic plans," 
establishing the office, hiring managers, and "educating, training and guiding them on company 
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policy, missions, and strategy." Further, the president of the U.S. company explained the Beneficiary 
would be responsible for creating accounting, tech and e-commerce integration, sales and marketing, 
human resources and administration, and production departments using "a proven formula for 
leadership." The RFE response letter stated that the Beneficiary would devote his time to the following 
duties: 
1. Strategic Planning and Direction-Approximately 40-50% 
2. Sales, Marketing, Branding Department-Approximately 25-30% 
3. Procurement Department-Approximately 10-20% 
4. Budgeting, Accounting and Legal Department-Approximately 15-20% 
5. Company Representation and Related Interaction-Approximately 10-20% 
In denying the petition, the Director concluded that the Petitioner did not provide sufficient detail in 
response to the RFE to demonstrate the Beneficiary's typical day-to-day duties nor delineate the actual 
tasks making up the general categories to which they assigned percentages. The Director further 
determined that certain assertions in the Beneficiary's duties did not reflect the U.S. company's stage 
of development, such as him "guiding managers and other executives." The Director concluded that 
the provided duties did not properly establish he would devote his time primarily to qualifying 
executive-level tasks. 
On appeal, the Petitioner contends that it was improper for the Director to "disparage" the "foture­
facing responsibilities" included in his duties noting that "there should no doubt that upon hiring new 
managers and executives, [the Beneficiary] will be guiding them." Likewise, the Petitioner points to 
the Beneficiary's proposed task of developing U.S. company location inl Iand again 
suggests it was improper for the Director to not consider this "new and proposed position." In addition, 
the Petitioner provides another duty description with percentages, as follows: 
Tasks related to brand sales, marketing, branding- 25-30% of time spent: 
• Manage design and implementation of new products and services, including 
brand development and marketing strategies- 15% 
• Oversee growth of our brands within the industry, including working with sales 
managers, identifying new customers, and developing guidelines, targets, and 
strategies- 5-10% 
• Oversee sales and customer growth- 5-10% 
Tasks related to procurement- 25-30% of time spent: 
• Oversee the sourcing and manufacturing of goods ensuring quality and expense 
targets are met, consisting of establishing and growing relationships with 
suppliers and guiding the buying team to set guidelines and expectations- 5-
7.5% 
• Ensuring regulatory guidelines and company requirements are met for the 
products we sell, comprising instituting guidelines suppliers follow and 
ensuring that staff is trained to correct manufactured products that do not pass 
inspections- 5-7.5% 
Tasks related to budgeting, accounting and legal- 15-20% of time spent: 
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• Oversee financial performance and risk profiles- 7-7.5% 
• Ensure timely submission of month-end financial and operational information-
5% 
• Monitor firm performance by establish[ing] and measuring analyzed results, 
including initiating corrective measures and minimizing the impact of 
variances- 5-7.5% 
Tasks related to company representation and related interaction: Represent company at 
business functions, community events, networking opportunities- 10%-20% of time 
spent 
Tasks related to strategic planning and direction- 40-50% of time spent 
• Making decisions related to all departments to improve company revenues, staff 
productivity and reducing expenditures- 20-25% 
• Operational management of business departments- 5-10% 
• Ensure company is staffed with well trained personnel that is engaged and performs 
at a high level- 5% 
• Establish quality metrics and assess whether they've been achieved through establishment 
of viable business processes following applicable regulatory guidelines- 5% 
• Communicating with operational issues with owners, board members and other 
stakeholders as necessary- 5% 
The Petitioner provides few details and little supporting evidence to sufficiently substantiate that he 
would likely be primarily engaged in executive-level tasks. The Petitioner provides few specifics as 
to the actual day-to-day tasks the Beneficiary would perform while in the United States, in the context 
of the company's actual business operations. In fact, the Beneficiary's duties include little specific 
discussion of the company's type of business and his generic list of executive duties could apply to 
any individual acting in any executive role with any company in almost any industry. For instance, 
the Petitioner did not describe the new products or services the Beneficiary would design and 
implement, the marketing campaigns he would oversee, or the marketing team he would guide. 
Likewise, the Petitioner did not sufficiently detail the procurement activities the Beneficiary would 
manage, including the manufactured goods he would ensure the quality of, suppliers he would work 
with, cost reduction strategies he would implement, or regulations with which he would ensure 
compliance. In addition, the Petitioner did not adequately explain or document the "risk profiles" the 
Beneficiary would oversee, the financial performance he would be responsible for, or the events he 
would attend to represent the company. Lastly, the Petitioner provided little detail as to the strategic 
direction the Beneficiary would provide, including the asserted budgets he would manage within 
departments, the revenue he would be tasked with growing, the targets he projected to accomplish, or 
other "business processes" he would implement. 
The Petitioner stated several times on the record that the Beneficiary had "developed a proven formula 
for leadership" and a method for the operation for the business abroad that he would implement at the 
U.S. company. However, it did not sufficiently explain this business model or his specific approach. 
Although we do not expect the Petitioner to detail every daily task the Beneficiary would perform in 
the United States, it is reasonable to expect that there would be credible specifics relating to its actual 
business operations to make the duty description sufficiently credible. 
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Furthermore, in discussing the Beneficiary's duties, the Petitioner leaves question as to whether its 
operations were sufficient to support an executive-level role as of the date the petition was filed. For 
example, in support of the RFE, the Petitioner indicated that the Beneficiary would be responsible for 
"developing ourl !location into a fully functioning sales, fulfillment, processing, product 
design, and procurement office for the company," and "growing each of the departments," including 
accounting, tech and e-commerce integration, sales and marketing, human resources and 
administration, and production departments. Likewise, on appeal, the Petitioner contends that it was 
improper for the Director to "disparage" the "future-facing responsibilities" listed in his duties, 
including his oversight of managers and other executives, noting that "there should no doubt that upon 
hiring [emphasis added] new managers and executives, [the Beneficiary] will be guiding them." On 
appeal, the Petitioner points to the Beneficiary's proposed task of developing U.S. company location 
inl Iand again suggests it was improper for the Director to not consider this "new and 
proposed position." 
However, we note that the regulations require that the Petitioner establish 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). Therefore, the Petitioner's statements on future duties 
and the hiring of subordinate executives and managers after the date the petition was filed leave 
uncertainty as to whether the Beneficiary would have acted in an executive-capacity as of the date the 
petition was filed. The Petitioner must resolve ambiguity in the record with independent, objective 
evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In sum, the Petitioner provided insufficient information and evidence as to the Beneficiary's proposed 
executive level-role in the United States, therefore, it is difficult to conclude that he would be primarily 
engaged in executive-level tasks. Again, whether the Beneficiary is an executive employee turns on 
whether the Petitioner has sustained its burden of proving that their duties would be "primarily" 
executive. See section 101(a)(44)(B) of the Act. Specifics are clearly an important indication of 
whether a beneficiary's duties will be primarily executive 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). 
Even though the Beneficiary holds a senior position within the organization, the fact that he 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 10l(a)(44)(B) of the 
Act. By statute, eligibility for this classification requires that the duties of a position be "primarily" 
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 position descriptions alone are insufficient to establish that his actual duties would be 
primarily executive in nature. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in an 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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As noted, the Petitioner claims the Beneficiary would act in an executive capacity in the United States. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of an organization or major component or function thereof Section 10l(a)(44)(B) 
of the Act. To show that a beneficiary will "direct the management" of an organization or a major 
component or function of that organization, a petitioner must show how the organization, major 
component, or function is managed and demonstrate that the beneficiary primarily focuses on its broad 
goals and policies, rather than the day-to-day operations of such. An individual will not be deemed 
an executive under the statute simply because they have an executive title or because they "direct" the 
organization, major component, or function as the 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." Id. 
In support of the petition in June 2022, the Petitioner submitted an organizational chart reflecting a 
president supervising two sales managers and a warehouse and shipping manager. The warehouse and 
shipping manager was shown to oversee a warehouse assistant, an e-commerce shipping assistant, and 
a wholesale shipping assistant. The chart further listed two members, or owners of the U.S. company, 
acting at a similar level as the president. However, in response to the RFE, the Petitioner submitted a 
more robust organizational chart showing that the Beneficiary would supervise two "senior sales 
managers" overseeing a sales coordinator and a sales representative whose "hiring [was] in process." 
The chart also reflected that the Beneficiary would supervise a chief financial officer overseeing an 
accounting employee, to be hired, as well as an office and administration manager. Lastly, the updated 
organizational chart reflected that the Beneficiary would also oversee a warehouse and logistics 
manager supervising a warehouse supervisor, who would in tum, oversee a wholesale shipping 
assistant and two e-commerce shipping assistants. 
In the RFE, the Director requested that the Petitioner submit not only a payroll summary, but IRS 
Forms W-2, Wage and Tax Statements, IRS Forms W-3, Transmittal of Wage and Tax Statements, 
and/or IRS Forms 1099, Miscellaneous Income showing the wages paid to the U.S. company's 
employees. However, the only tax document the Petitioner provided was its 2021 IRS Form 1065, 
U.S. Return of Partnership Income, reflecting that it paid only $134,243 in salaries and wages during 
that year, an amount seemingly not sufficient to support its president and seven other employees listed 
in its initial organizational chart provided at the time the petition was filed. Although we acknowledge 
that the Petitioner provided internal payroll documentation, we do not find this alone sufficient to 
objectively corroborate the U.S. company's asserted organizational chart as of the date the petition 
was filed. In addition, we will not consider the expanded organizational chart submitted later with the 
RFE, since the Petitioner was required to demonstrate the Beneficiary's eligibility as of the date the 
petition was filed. As we have also discussed, the Petitioner provided statements on the record, and 
on appeal, suggest that the Beneficiary's executive-level role was conditioned of future hiring, again 
leaving further question as to whether it was sufficiently operational in June 2022 to support him in 
this proposed executive-level role. 
For example, the U.S. company's organizational chart as of the date the petition was filed reflects two 
"sales managers." However, the chart shows that these asserted managerial subordinates reporting to 
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the Beneficiary had no subordinates of their own, indicating that they were likely first-level sales 
representatives rather than managers when the petition was filed. The chart otherwise includes only 
one other claimed managerial level employee, the warehouse and shipping manager, which the 
Petitioner did not sufficiently corroborate as a subordinate manager. For instance, there is little 
supporting documentation on the record to substantiate this claimed subordinate manager's role, nor 
a specific discussion of how the Beneficiary would direct and delegate duties to this claimed manager. 
Once again, it is also noteworthy that the Petitioner emphasizes on appeal that we should not be 
considering the Beneficiary's role as of the date the petition was filed, but his "future-facing" role, 
leaving question as to whether the U.S. company was sufficiently developed as of the date the petition 
was filed to support him in an executive-level capacity. In fact, in response to the RFE, the Petitioner 
assertions suggest that the essence of the Beneficiary's position in the United States was to develop 
the company's !location and grow each of its departments, departments not reflected in 
the organizational chart submitted with the petition. The organizational chart provided with the 
petition also listed two co-owners/members and a president, leaving question that the company would 
require four executive-level employees at its limited stage of development when the petition was filed. 
The Petitioner must demonstrate the Beneficiary's eligibility as of the date the petition was filed, not 
based on projected growth. Again, the Petitioner must establish 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 does not supplement the record on appeal with 
additional evidence to substantiate that it was sufficiently developed as of the date the petition was 
filed to support him in a role where he would be primarily engaged in executive-level duties. 
In sum, the Petitioner submitted a generic duty description for the Beneficiary that does not sufficiently 
substantiate he would have been employed in an executive-level capacity as of the date the petition 
was filed. Likewise, the Petitioner made conflicting statements and provided insufficient 
documentation to establish that it was sufficiently developed as of the date the petition was filed to 
support the Beneficiary in an elevated position where he would be primarily focused on broad goals 
and policies, rather than day-to-day operations. Therefore, the Petitioner has not established that the 
Beneficiary would be employed in an executive capacity in the United States. 
ORDER: The appeal is dismissed. 
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