dismissed L-1A Case: Convenience Store

U.S. Citizenship 
and Immigration 
Services 
In Re: 7906363 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: WL Y 7, 2020 
The Petitioner seeks to operate a convenience store I and to temporarily employ the Beneficiary as 
"General Operations Director" of its new office2 under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) Section 10l(a)(l5)(L), 
8 U.S.C. § l 101(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 that the Petitioner did 
not establish, as required, that (1) the Beneficiary was employed abroad in a managerial or executive 
capacity and (2) the new office would support the Beneficiary in a managerial or executive position 
within one year of the petition's approval. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal because the 
Petitioner did not establish that it would support the Beneficiary in an executive capacity3 within one 
year of the petition's approval, as claimed. Since the identified basis for denial is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate arguments 
regarding the Beneficiary's employment abroad. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
("courts and agencies are not required to make findings on issues the decision of which is unnecessary 
to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516,526 n.7 (BIA 2015) (declining 
to reach alternative issues on appeal where an applicant is otherwise ineligible). 
1 Although the Petitioner's response to the request for evidence (RFE) contains copied photographs of a gas station and a 
statement claiming that gasoline sales would account for 75% of the Petitioner 's revenue , the Petitioner did not provide 
evidence that a gas station would be part of the operation. The Petitioner must support its assertions with relevant , 
probative , and credible evidence. See Matter ofChawath e, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner's business 
plan does not mention a gas station and the business lease states that the leased premises cannot be used to store 
"flammables or other inherently dangerous substance , chemical , thing or device. " Therefore , this petition will be reviewed 
within the scope of the Petitioner's claim that it will operate as a convenience store. 
2 The term "new office" refers to an organization which has been doing business in the United States for less than one year. 
8 C.F.R. § 214.2(l)(l)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no more than 
one year within the date of approval of the petition to support an executive or managerial position. 
3 The Petitioner does not claim that the Beneficiary's proposed position would be in a managerial capacity. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving 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. 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. Id. 
Further, in the case of a new office petition, the petitioner must submit evidence to demonstrate that 
the new office will be able to support a managerial or executive position within one year. This 
evidence must establish that the petitioner secured sufficient physical premises to house its operation 
and disclose the proposed nature and scope of the entity, its organizational structure, its financial goals, 
and the size of the U.S. investment. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Petitioner claims that it will employ the Beneficiary in an executive capacity. The primary issue 
to be addressed in this discussion is whether the Petitioner provided sufficient evidence to establish 
that its operation would support the Beneficiary in an executive capacity within one year of the 
petition's approval. 
"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. 
A. Duties 
In a supporting cover letter, the Petitioner stated that the Beneficiary found a location from which to 
operate its convenience store and is qualified to establish its corporate policies, train its "management 
staff," and "develop the [business] culture." It also stated that the Beneficiary and will be responsible 
for establishing "the legal requisites" and "developing relationships with wholesale buyers." In a 
separate document, the Petitioner stated that the Beneficiary "strategizes the financial goal-setting" 
and stated that the Beneficiary would use his discretionary authority to put forth directives regarding 
the following: personnel size and salaries, "debt reduction," setting incentives to meet sales goals, 
establishing lines of credit and negotiating the purchase of future businesses, adding or eliminating 
product lines, monitoring finances and "departmental budgets" and approving the annual budget, and 
creating a "policy and procedures manual for the company" and a training program for "all Managers." 
However, the Petitioner's references to "departmental budgets" and "all Managers" are at odds with 
the projected organizational chart, which does not indicate that the Petitioner will be comprised of 
multiple departments and depicts a single manager - the Beneficiary's only subordinate - overseeing 
four sales associates. If USCIS finds reason to believe that an assertion stated in the petition is not 
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true, USCIS may reject that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § l 154(b); 
Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. 
Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Furthermore, the Petitioner did not specify the job duties the Beneficiary would perform during its 
initial stage of operation to ensure the company's progression beyond that phase and on to the next 
state of development during which it would support the Beneficiary in an executive position entailing 
primarily executive-level job duties within one year of the petition's approval. Although the Petitioner 
provided a business plan that included a three-year projection of its staffing and operations, the plan 
indicated that the Petitioner would maintain the same staffing during all three years, thus leading us to 
question if and how the Beneficiary's position would evolve to include primarily executive job duties. 
In an RFE, the Director asked the Petitioner to clarify the Beneficiary's proposed job duties and 
provide evidence demonstrating that the Beneficiary would not primarily perform operational, non­
executive job duties. 
In response, the Petitioner provided a vague job duty breakdown containing activities that cannot be 
readily applied within the context of a convenience store operation. For instance, the Petitioner stated 
that the Beneficiary would allocate 20% of his time to establishing relationships with banks and 
negotiating lines of credit, reviewing and approving contracts with vendors, "[ e ]xecuting the business 
plan" within the context of organizational goals and budgetary restraints, and developing "new 
business relationships and customers, while strengthening current relationships." The Petitioner did 
not list any daily or weekly tasks that would explain how the Beneficiary would "execut[ e] the business 
plan," nor did it explain how developing "new business relationships and customers" within the 
context of a convenience store amounts to an executive-level task. 
The Petitioner claimed that 30% of the Beneficiary's time would be allocated to meeting registration 
and licensing requirements, analyzing promotional and operating expenses, and managing finances by 
overseeing preparation and delivery of financial statements, assessing "liquidity needs," and managing 
"external audits." However, the Petitioner did not state who would prepare the financial statements, 
nor did it establish that the Beneficiary would be required to assess "liquidity needs" and manage 
audits on a daily or weekly basis in the course of operating a convenience store. Likewise, despite 
claiming that another 30% of the Beneficiary's time would be spent keeping abreast of industry trends, 
conducting market and break-even analysis, and "[ a ]nalyzing the management of financial 
development, account planning, [ and] trade fonds," the Petitioner did not clarify how these broadly 
stated business objectives are applicable to the specific needs and operations of a convenience store. 
Lastly, despite a projected staffing hierarchy that would include only one manager during the first 
three years of its operation, the Petitioner claimed that the remaining 20% of the Beneficiary's time 
would be spent "[ c ]oordinating the entire operation of the management staff," recruiting and training 
"the management staff:" and meeting "management productivity standards and committed sales 
goals." As noted earlier, the Petitioner's references to a "management staff' implies that it would 
employ managers comprising that staff. However, the Petitioner's projected staffing hierarchy as 
expressed in its business plan is inconsistent with these references and results in a misleading depiction 
of an organizational complexity that the Petitioner did not anticipate at the time of filing. The 
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Petitioner must resolve this inconsistency 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). 
In the denial, the Director questioned the Petitioner's ability to relieve the Beneficiary from having to 
primarily perform non-executive job duties within one year of the petition's approval, finding that the 
Beneficiary's position is more akin to that of a first-line supervisor rather than an executive. 
On appeal, the Petitioner asserts that the Director did not apply the correct standard of proof and "may 
have overlooked or confused evidence." However, the Petitioner does not point to evidence the 
Director purportedly overlooked or confused, nor does it point to evidence it claims support its claims. 
Likewise, the Petitioner does not identify a basis for claiming that an incorrect standard of proof was 
applied in denying the petition. Further, despite claiming that the Beneficiary would interview, hire, 
and train his "management staff:" the Petitioner's staffing projections show that it only planned to fill 
one manager position for the first three years of its operation and that position was shown as having 
been filled by the Beneficiary's brother at the time this petition was filed. As such, the record does 
not support the Petitioner's claim. See Chawathe, 25 I&N Dec. at 376. Moreover, the Petitioner did 
not establish that interviewing, hiring, and training staff, even "management staff:" is an executive, as 
opposed to a human resources, function. 
Although the Petitioner also contends that the general manager will oversee the "daily operations of 
the business," it has not provided a detailed account of the actual daily tasks the Beneficiary will 
perform within the context of a five-person convenience store. Rather, the Petitioner broadly focuses 
on the Beneficiary's discretionary authority, stating that the Beneficiary "is the only person qualified 
to negotiate future acquisitions," negotiate with lenders, and make other decisions about issues 
concerning the Petitioner's finances and operations. However, the Petitioner says little about the 
actual tasks the Beneficiary would perform during the various stages of its development and makes no 
distinction between tasks that the Beneficiary would need to perform during its rudimentary phase and 
those he intends to perform once the company is no longer in the "new office" stage of development. 
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), ajf'd, 905 F.2d 
41 (2d. Cir. 1990). Although it is reasonable to conclude that the Beneficiary's duties would change 
to correspond with the Petitioner's operational development and changing needs, the Petitioner did 
not provide a job description that reflects this likely progression. Without a detailed iteration of the 
Beneficiary's job duties during the Petitioner's first year of operation, it is unclear how the Petitioner 
would progress beyond the "new office" phase. 
We acknowledge that the Beneficiary would assume a position as the Petitioner's senior employee 
and that as a result, he would have authority to establish plans, policies, and objectives for the company 
and make major decisions regarding its finances and overall direction. However, the Petitioner has 
not established that these types of responsibilities would primarily occupy the Beneficiary's time 
within one year. By statute, eligibility for this classification requires that the duties of a position be 
"primarily" executive or managerial in nature. Sections 101(A)(44)(A) and (B) of the Act. Therefore, 
even though the Beneficiary may exercise discretion over the Petitioner's day-to-day operations, a 
broad overview of his responsibilities is insufficient to establish that his actual duties during the 
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Petitioner's first year of operation would lead to primarily managerial or executive duties within one 
year of this petition's approval. 
In light of the ambiguities described above, we are unable to ascertain what job duties the Beneficiary 
would perform to develop the Petitioner beyond the "new office" phase of operation or the job duties 
he would perform beyond that initial phase. 
B. Projected Staffing and Business Plan 
If staffing levels are used as a factor in determining whether an individual will be acting in a 
managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) takes into 
account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. See section 10l(a)(44)(C) of the Act. 
At the time of filing, the Petitioner projected that its organization would eventually be comprised of 
six employees, including the Beneficiary. The organizational chart that was included in the original 
business plan d depicts the Beneficiary at the top of the hierarchy, followed by the general manager as 
the Beneficiary's subordinate, and four sales associates at the bottom tier of the organization. The 
Petitioner did not clarify how its staffing structure, within the context of a convenience store operation, 
would elevate the Beneficiary to an executive position. 
In the RFE response, the Petitioner reiterated its plan to operate as a convenience store and farther 
stated its intent to expand its business by using the existing store as a vehicle for exporting "a variety 
of novelty products from worldwide suppliers" and "specialty" products from India. The Petitioner 
did not, however, offer more detailed information clarifying when and how it planned to take steps 
towards the expansion or establish that its staffing plan would be sufficient to meet the business needs 
of an export business. Further, despite pointing to the Beneficiary's discretionary authority and his 
position at the top of the hierarchy as supporting factors, we note that 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. Section 101 (a)( 44 )(B) of the Act. The Petitioner 
must support its assertions with relevant, probative, and credible evidence. See Chawathe, 25 I&N 
Dec. at 376. Although the Petitioner stated that the store manager would oversee the store's daily 
operations, this claim, without farther supporting evidence, is not sufficient to establish that within 
one year of this petition's approval the Petitioner would be adequately staffed and would have the 
capacity to relieve the Beneficiary from having to primarily perform non-executive tasks as a routine 
part of his daily activity. 
Accordingly, given the deficient evidence offered to support this petition, we cannot conclude that 
within one year of the petition's approval, the Petitioner would have the staffing composition to elevate 
the Beneficiary to an executive position that would require him to perform job duties that would focus 
primarily on the broad goals and policies of the organization. 
ORDER: The appeal will be dismissed. 
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