dismissed L-1A Case: Digital Commerce

MATTER OF A-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 31, 2018 
PETITION: FORM.1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a digital commerce technology firm, seeks to temporarily employ the Beneficiary as its 
vice president of business development under the L-1 A nonimmigrant classification for intracompany 
transferees. Immigration and Nationality Act (the Act) section I 01 (a)(l 5)(L), 8 U.S.C. 
§ 1101(a)(l5)(L). The L-lA classification allows a corporation or other legal entity (including its 
affiliate or subsidiary) to transfor a qualifying foreign employee to the United States to work 
temporarily in a managerial or executive capacity. 
The Director of the Texas 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. On appeal, the Petitioner asserts that the denial decision "is 
riddled with errors" concerning informatio~ and evidence in the record. ' 
Upon de novo review, we will dismisssthe appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A 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 10l(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 Director found that that the Petitioner did not establish that it will employ the Beneficiary in an 
executive capacity. The Petitioner does not claim that it seeks to employ the Beneficiary in a 
. managerial capacity. 
Matter of A-. Inc. 
"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, qr 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. 
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 I0l(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 h~gher level executives, the board 
of directors, or stockholders of the organization." Id. 
Based on the statutory definition of executive capacity, a pehttoner 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 
bene~ ciary 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. 
When examining the claimed executive capacity of a given beneficiary, we will look to 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 a 
managerial or 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, ano any other fae:tors 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 and its staffing levels. 
A. Duties 
The Petitioner listed the Beneficiary's proposed U.S. duties and the time to be devoted to each: 
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Maller C?.f A-. Inc. 
• Responsible to evolve new strategies and programs to grow [the Petitioner's] client 
base in the areas of Oracle Commerce and IN SITE Commerce (25% of his time) 
• Identify and expand the company's footprint in new geographical areas (I 0% of his 
time) 
• Responsible to create and submit responses to Request[s] for Proposals (RFP) (20% 
of his time) 
• Responsible for managing and strengthening the partner program with Oracle 
Commerce and INS ITE fo~ eCommerce platforms ( 10% of his time) 
• Handle all the financial operations of the U.S. company (10%) 
• Responsible for the regulatory compliance for the company (5%) 
• Responsible for audits and review of the company's books and presenting them to the 
Board of Directors (5%) 
• Interviewing/hiring new potential engineers, makes final hiring decisions ( 10%) 
• Training company's engineer staff on software systems (5%) 
In the denial notice, the Director found that the job description is "vague," and that "the 
beneficiary's tasks are part of the consulting services that [the Petitioner] offers to [its] clients." The 
record does not support the latter conclusion, which appears to arise from a misreading of consulting 
agreements in the record. · 
With respect to the Beneficiary's job description, the Petitioner asserts that the Director considered 
"only the bullet points" reproduced above, rather than the "very detailed description" that elaborated 
on each of the above points. Review of the more detailed description, however, does not establish 
eligibility. Even with the Petitioner's elaborations, some of the responsibilities remain vague. The 
Petitioner stated that the Beneficiary's work "expand[ing] the company's footprint" would involve 
participating in "trade shows, conferences, and business networking events," as well as "[n]ew client 
acquisition ... through active networking." The Petitioner did not fully explain the nature of this 
participation and networking, and therefore it is not evident that these tasks are consistent with an 
executive capacity. Similarly, the Petitioner stated that the Beneficiary will "[e]nsure that the US 
complies with all legal requirements," but did not explain what tasks this responsibility would entail 
or who would perform the non-executive functions (such as preparing paperwork) involved in 
meeting compliance requirements. 
Other tasks appear to be lower-level operational tasks. Regarding the preparation aQd submission of 
RFPs, the Petitioner stated that the Beneficiary's "subordinate engineering managers in India ... 
will be responsible for drafting the actual RFPs. However, [the Beneficiary] will ... be responsible 
for submission of these responses and interfacing with the potential new customers." It is not 
evident that discussing individual projects with prospective clients 'is an executive-level task. 
"[M]anaging and strengthening the partner program" would also involve significant customer 
contact by the_ Beneficiary, who "will be responsible to build and manag[e] these relationships" 
"with US customers in person." 
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Maller of A-, Inc. 
Interviewing and hiring engineers is, at most, a managerial rather than executive task, and there is no 
provision for a hybrid manager/executive position with some responsibilities of each type of 
position. .The Petitioner stated that the Beneficiary will "ensure that all software engineers working 
for the US company receive adequate and ongoing training," but there is no other U.S. staff other . 
than the Beneficiary to provide that training. Training newly-hired engineers is a lower-level 
operational rcsponsi bi I ity. 
The remaining responsibilities appear to be more consistent with an executive capacity, but the 
Petitioner's own estimates indicate that they would take up less than half of the Beneficiary's time, 
and therefore the Beneficiary .would not primarily perform executive duties as required. 
B. Staffing 
The Petitioner stated that the Beneficiary "will oversee a group of contractors as well as Indian 
subordinates," and "will spend 100% of his time managing the work done by others as opposed to 
carrying out functions himself." 
At the time of filing, the Petitioner's only U.S. employee was the company's president. The 
Petitioner asserted the U.S. staff would grow after the Beneficiary's arrival in the United States, but 
the Petitioner must meet all eligibility requirements at the time of filing the petition. See 8 C.F.R. 
§ 103.2(b)(l f Therefore, we must look at the company's existing staffing at the time of filing, 
rather than the Petitioner's hypothetical plans to expand in the future. (Because the Beneficiary is 
not yet working in the United States, any job descriptjon will necessarily be-prospective, but that job 
description must rely on the company structure as it already exists, rather than what the Petitioner 
plans for some point in the future.) 
An ·organizational chart indicated that the Beneficiary would oversee foreign employees and U.S. 
subcontractors: 
The Beneficiary 
4 U.S. Subcontractors Finance Manager Quality Assurance·Manager· Manager 
I I I 
Accountant 4 Engineers 5 Engineers 
The Petitioner submitted copies of consulting agreements relating to three of the subcontractors 
named on the chart. The agreements are generic, accompanied by work orders that specify the dates 
of service and the hourly pay rate, but not the nature of the contracted work. · 
· The resume for the fourth subcontracto·r indicates that the individual has a background in human 
resources rather than computer science. The resume listed three responsibilities with the. petitioning 
company, without elaboration: "Recruitment for all levels of c~nsultants," "Deal with Vendors," 
and "Create JD's." 
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Matter of A-. Inc. 
In the denial notice, the Director stated that the individuals named as subcontractors on the 
organizational chart are not contractors, but rather "the employees of [the Petitioner's] clients," and 
that the Petitioner had not explained how the Beneficiary would have executive authority over those 
individuals. 
The record 'does not support the Director's finding that the named subcontractors are "employees of 
[the Petitioner's] clients." The submitted consulting agreements indicate that the named individuals 
will "provide certain consulting and other technology related services" to the Petitioner. But the 
record is inconsistent with regard to the Beneficiary's intended authority over the subcontractors. 
On appeal, the Petitioner states: "Nowhere in the record does the petitioner claim or indicate t~at 
[the Beneficiary's] job duties in the U.S. will entail controlling the work of the subcontractors." But 
initially, the Petitioner stated that the Beneficiary "will oversee a group of contractors ... after his 
transfer to c,the U.S." [n response to a request for evidence, the Petitioner stated that "U.S. 
contractors.· .. will report directly to [the Beneficiary]." (The Petitioner indicated that, at present, its 
president "is responsible for managing the work performed by the contractors," but the Petitioner 
also acknowledged that the president is "the only employee of the U.S. organization currently.") 
The Beneficiary's job description does not mention the subcontractors, but that job description also 
assumes the presence of subordinate U.S. employees whom the Petitioner has not yet hired. 
The Petitioner asserts that the Beneficiary's executive capacity will derive from his authority over 
the larger organization, including subordinates in India. The job description referred to continued 
interaction with "subordinate . .' . Managers in India," but as· discussed above, the Petitioner has not 
shown that this oversight will be among the Beneficiary's prima,y responsibilities. 
Based on the deficiencies inconsistencies discussed above, the Petitioner has not established that it 
will employ the Beneficiary in a primarily executive capacity in the United States. 
III. QUALIFYING RELATIONSHIP 
Beyond the Director's decision, the record does not establish that the Petitioner has ·a qualifying 
relationship with the Beneficiary's' foreign employer. · 
To establish a "qualifying relationship" under the Act and the regulations, a petitioner must show 
that the beneficiary's foreign employer.and the proposed U.S. employer are the same employer (i.e. 
one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See 
generally section I0l(a)(15)(L) of the Act; 8 C.F.R. § 214.2(1). \ 
To qualify as affiliates, the U.S. and foreign employers must be "owned and controlled by the same 
parent or individual," or "legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each entity." 
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Matter of A-, Inc. 
8 C.F.R. § 214.2(1)(1 )(ii)(L). The Petitioner asserted that the two companies meet the second 
requirement.. 
The two companies, however, are not owned by the same group of individuals. The U.S. entity has 
five shareholders. Those five individuals also own shares in the foreign entity, in the same 
proportions relative to one another, but there is also a sixth shareholder who ovms 2000 out of 
I 7,750 shares issued by the foreign entity. When the Petitioner disclosed this information, after the 
initial filing, the Petitioner stated: "Despite this additional shareholder, the companies nevertheless 
exist in a qualifying corporate relationship, as they are controlled by the same group of individuals 
with each individual owning and controlling approximately the same proportion of each entity." 
Specifically, the Beneficiary and one other shareholder each own 32% of the U.S. entity and about 
28% of the foreign entity. The Petitioner asserts that these two individuals "together own a majority 
of both the Indian and U.S. companjes," (No single shareholder owns a controlling interest in either 
company.) 
The regulation, however, requires the two entities to be "owned and controlled by the same group of 
individuals." The Petitioner, here, has attempted to modify this definition, by looking only at a 
subset of the owners, and asserting that this smaller group shares ownership and control in similar 
proportions. 
ln this case, the Petitioner has five shareholders, and the foreign entity has six. While the companies 
have five owners in common, we cannot accept a combination of some or all of those· five individual 
shareholders as a single entity, so that the group may claim common ownership, unless the group 
members have been shown to be legally bound together as a unit within the company by voting 
agreements or proxies. 
The Petitioner must establish that it and the foreign employer share common ownership and control. 
Control may be "de jure" by reason of ownership- of 51 percent of outstanding stocks of the other 
entity or it may be "de facto" by reason of control of voting shares through partial ownership and 
possession of proxy votes. Matter of Hughes, I 8 I&N Dec. 289 (Comm'r I 982). 
The record does not show that the Petitioner has established that it has a qualifying relationship with 
the Beneficiary's foreign employer. 
IV. CONCLUSION 
The Petitioner did not establish that it will employ the Beneficiary in a primarily executive capacity, 
or that it has a qualifying relationship with the Beneficiary's foreign employer. 
ORDER: The appeal is dismissed. 
Cite as Matter q/A-:Inc., ID# 1811089 (AAO Dec. 31, 2018) 
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