dismissed L-1A Case: Clothing Importer

U.S. Citizenship 
and Immigration 
Services 
MAlTER OF M-C-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 13, 2018 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER· 
The Petitioner, a clothing importer, seeks to continue the Beneficiary's temporary employment as its 
vice president 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 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 Petitioner did not 
establish that the Beneficiary would be employed in a managerial or executive capacity under the 
extended petition. 
On appeal, the Petitioner asserts that the Director erred in denying the petition and contends that the 
Beneficiary would act in an executive capacity under the extended petition. 
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 managerial or executive capacity for one continuous year within 
three years preceding the beneficiary's application for admission into the United States. 8 C.F.R. 
§ 214.2(1)(3)(v)(B). 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 which was approved for the period 
April20, 2015, until April 19,2016. 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 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 of M-C-, Inc. 
A petitioner seeking to extend an L-1A petition that involved a new office must submit a statement 
of the beneficiary's duties during the previous year and under the extended 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 first issue to be addressed is whether the Petitioner established that the Beneficiary would be 
employed in an executive capacity under the extended petition. 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. 
The statute defines an "executive capacity" 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 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). 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. 
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. USC!S, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d 1533. 
The Petitioner stated that its parent company based in Bangladesh exports clothing products to 
Europe and the United States, including tee shirts, polo shirts, nightwear, men's and women's 
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M a tier of M -C -, Inc. 
undergarments, and children's clothing. The Petitioner indicated that the Beneficiary is tasked with 
formulating the business policy and guidelines of the company. The Petitioner explained the 
Beneficiary's duties as follows: 
i) Direct the overall management of [the Petitioner's] business activities m the 
region including[:] 
ii) Marketing, sales administration, finance and technical service; 
iii) Formulating business policy, guidelines, procedure[ s] and new business goals as 
needed; 
iv) Evaluating unit's business performance, developing and implementing remedies 
as necessary to improve performance; 
v) Maintaining business contacts and relations with top executives of major 
company's customers with headquarters in the relevant business areas: 
vi) Conducting all personnel evaluations including hiring personnel as necessary, 
firing and promotions; 
vii) Exercise and enjoy wide latitude in discretionary decision making, etc. 
The Petitioner also indicated that the Beneficiary supervises two "regular employees along with 
occasional independent contract employees who undertakes [sic] freight forwarding, shipping, 
warehouse delivery, assortment, releases cargo from carriers and local deliveries and pick up to and 
from warehouse and then to customers." 
The Petitioner did not submit a sufficiently detailed duty description describing the Beneficiary's 
day-to-day executive-level duties or credibly establishing that he would devote his time primarily to 
qualifying tasks. The Beneficiary's duty description includes several generic duties that could apply 
to any executive acting in any business or industry and they do not provide insight into the actual 
nature of his role. The Petitioner provided insufficient examples and little supporting documentation 
to demonstrate the Beneficiary's performance of qualifying duties, such as marketing he oversaw, 
sales administration he managed, technical services he directed, or business policies or guidelines he 
formulated. The Petitioner did not describe and document remedies he developed and implemented, 
business contacts he maintained, or personnel decisions he made. In fact, the Beneficiary's duty 
description largely reiterates the regulatory definition of "executive capacity." See 8 C.F.R. 
214.2(1)(1)(ii). Specifics are clearly an important indication of whether a beneficiary's duties arc 
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). 
To the extent that the Beneficiary submits detail and documentation regarding the Beneficiary's 
daily duties, this evidence reflects his involvement in non-qualifying operational tasks~ For instance, 
the Petitioner submits several customs forms, invoices, bills of lading, and other such documentation 
reflecting its shipment of clothing from Bangladesh to the United States. However, several "arrival 
notices" it provided list the Beneficiary as the only Petitioner contact, the most recent from April 
2017, dating more than a year after the petition was filed. In contrast, the Petitioner submits no 
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Matter of M-C-, Inc. 
supporting documentation indicating that the Beneficiary delegates to subordinates the non­
qualifying operational tasks reflected in the shipping, receiving, billing, and customs forms. The 
Petitioner provides few examples and little documentation to SUQstantiate the Beneficiary's day-to­
day executive level tasks. 
Whether a beneficiary is an executive employee turns on whether the petitioner has sustained its 
burden of proving that their duties are "primarily" executive. See section 101(a)(44)(B) of the Act. 
Here, the Petitioner does not document what proportion of the Beneficiary's duties would be 
executive functions and what proportion would be non-qualifying. The Petitioner submits evidence 
indicating the Beneficiary's involvement in operational level tasks that do not fall directly under 
executive duties as defined in the statute, but does not quantify the time he spends on these duties. 
For this reason, we cannot determine whether the Beneficiary is primarily performing the duties of 
an executive. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D:C. 1999). 
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 IOI(a)(44)(B) of the 
Act. By statute, eligibility for this classification requires that the duties of a position be "primarily" 
executive in nature. !d. 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. 
The Petitioner submitted an organizational chart reflecting fifteen positions, including import, 
marketing, distribution, and accounts managers reporting to a president. The chart also indicated 
that the "president" oversees a designer. In addition, the chart included several operational level 
positions subordinate to the managers including "shipping and receiving," "feedback," "AGM," 
"store in charge," delivery assistant, and a "senior executive" and an "executive." In a letter 
submitted in response to the Director's request for evidence (RFE), the Petitioner stated that the 
Beneficiary oversees two "regular" employees and occasional independent contractors to undertake 
freight forwarding, shipping, warehouse delivery, assortment, and other similar shipping and 
receiving duties. 
The Petitioner did not submit supporting evidence to demonstrate that it has sufficient subordinates 
to relieve the Beneficiary from primarily performing non-qualifying operational duties. In the RFE, 
the Director requested that the Petitioner submit an organizational chart listing all of its employees 
by name and title, including a summary of their duties, education levels, and salaries. Further, the 
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Matter of M-C-, Inc. 
Director indicated that the Petitioner should provide documentation to support its employees such as 
IRS Forms W-2 or 1099 to substantiate wages paid. However, the Petitioner submitted no 
documentation to corroborate any of its employees, such as tax or payroll evidence. It only vaguely 
indicates that it has two "regular employees" subordinate to the Beneficiary; however, it does not 
identify these employees by name and job title, nor does it describe their duties. Likewise, the 
Petitioner further asserts that it hires independent contractors from time to time to perform shipping 
and delivery duties, but it again does not identify these contractors, explain their duties, or submit 
sufficient supporting documentation to corroborate their engagement. 
The evidence does not indicate that, as of the date the petition was filed, the Beneficiary was 
relieved from performing non-qualifying operational tasks and that he primarily spent his time 
focusing on executive level duties. Further, the Petitioner submitted evidence reflecting the 
Beneficiary's involvement in non-qualifying operational level duties. There is no evidence that the 
Beneficiary is delegating these duties to subordinates. In fact, the Petitioner asserts that the 
Beneficiary will act as the vice president of the company, but this position is not listed in its 
organizational chart. The Petitioner must resolve this discrepancy in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in an executive capacity. See, e.g., 
section IOI(a)(44)(B) of the Act (requiring that one "primarily" perform the enumerated executive 
duties); Matter of Church Scientology lnt '/, 19 I&N Dec. 593, 604 (Comm'r 1988). 
Therefore, absent required supporting evidence, the Petitioner has not demonstrated that it has 
sufficient operational employees to relieve the Beneficiary from primarily performing non­
qualifying tasks. It also has not substantiated that it has grown sufficiently during its first year to 
support the Beneficiary in an executive capacity. The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only 
allows the "new office" operation one year within the date of approval of the petition to support an 
executive position. There is no provision in the regulations that allows for an extension of this one­
year period. If a business does not have the necessary staffing to sufficiently relieve the beneficiary 
from performing operational and administrative tasks, the petitioner is ineligible for an extension. 
As noted, the Petitioner asserts that the Beneficiary qualifies as an executive. 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 10l(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. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only "general 
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Matter of M -C -, Inc. 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." /d. 
As discussed, the Petitioner has not substantiated that it has subordinate employees to allow the 
Beneficiary to primarily focus on the broad goals and policies of the organization rather than the 
day-to-day operations of the business. Submitted documentation indicates that the Beneficiary was 
engaged in non-qualifying activities and it has not documented that the Beneficiary has been relieved 
of these tasks. Likewise, the Petitioner does not credibly describe and document the Beneficiary's 
day-to-day executive level duties. In fact, even if we are to accept that the Petitioner has two 
employees and that it engages contractors for shipping and receiving duties, this would not appear 
sufficient to demonstrate that the Beneficiary acts in an executive capacity directing the management 
of an organization. For these reasons, the Petitioner has not established that the Beneficiary would 
act in an executive capacity under the extended petition. Therefore, the appeal must be dismissed. 
Ill. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
In addition, we will enter an additional basis for denial. The evidence in the record does not 
demonstrate that the Beneficiary acted in a managerial or executive capacity abroad. The Petitioner 
only states that the Beneficiary was "responsible for overall management, administration, 
formulating business policies, [and] guidelines of the [foreign employer]." This duty description is 
overly brief and generic and does not convey the-Beneficiary's actual day-to-day duties abroad. This 
lack of detail is particularly noteworthy since the Petitioner contends that the Beneficiary acted in his 
capacity abroad from 2006 until his entry into·the United States in April 2015. In addition, the 
Petitioner does not describe the Beneficiary's subordinates abroad, their duties, or their education 
levels. It submits no evidence to demonstrate that the Beneficiary was primarily relieved of non­
qualifying duties while working abroad. Therefore, the Petitioner has not demonstrated that the 
Beneficiary acts in a managerial or executive capacity abroad. For this additional reason, the appeal 
must be dismissed. 
IV. CONCLUSION 
The appeal must be dismissed because the Petitioner has not established that the Beneficiary would 
be employed in the United States in an executive capacity under the extended petition or that he was 
employed in a managerial or executive capacity abroad. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-C-, Inc., ID# 1166589 (AAO June 13, 2018) 
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