dismissed L-1A Case: Digital Design And Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 12237175 
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 : NOV . 27, 2020 
The Petitioner, a digital design and marketing solutions company, seeks to temporarily employ the 
Beneficiary as its "Vice President" under the L-lA nonimmigrant classification for intracompany 
transferees who are coming to be employed in the United States in a managerial or executive capacity. 
Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. § l 101(a)(15)(L). The 
L-IA 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 the Beneficiary's proposed position would be in a managerial or 
executive capacity . The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, the Petitioner has not met this burden. 
Accordingly, 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, or in a position requiring 
specialized knowledge 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)(1). 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 . 8 C.F.R. 
§ 214.2(1)(3)(ii). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The sole issue to be addressed is whether the Petitioner established that it would employ the 
Beneficiary in an executive capacity. Although the Director also considered whether the Beneficiary 
would be employed in a managerial capacity as defined at section 10l(a)(44)(A) of the Act, the 
Petitioner has not claimed that the Beneficiary's position is managerial in nature. 
"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 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 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. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d at 1533. 
The Petitioner stated it was formed in 2016 and that it "creates websites, digital products, 3D artifacts, 
apps, and results-driven online marketing programs." At the time of filing, the Petitioner claimed 3 
employees and $220,254 in gross earnings, stating that the Beneficiary would be compensated $75,000 
annually. In its initial letter of support, the Petitioner stated that the Beneficiary would oversee two 
employees; namely, a "Senior Content Specialist and Trainer" and a "Content Specialist," and 
provided a general description of the Beneficiary's duties, which included tasks such as "oversee and 
control business development and company management" and "direct and coordinate the operation" 
of the company. The Petitioner also provided a job duty breakdown, stating that the Beneficiary would 
allocate his time as follows (verbatim): 
• Own the relationship with digital marketing and product clients by forging 
strong communication and service legal agreement (SLA) with them (20%) 
• Strive to acquire new key accounts in eCommerce, metal buildings, real estate, 
and interior design industries (20%) 
• Oversee and direct activities for the following departments (30%): 
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o Account Management - project planning with timeframe analysis, 
production reporting, resource allocation, budgeting and testing use 
cases. 
o Product Development - software product development with business 
analysis in the states industries above. 
o Sales and Marketing - generate more key accounts in the above 
mentioned. 
• Lead the development, execution and optimization of all lead generation, 
nurturing, and paid customer acquisition campaigns (5%) 
• Oversee search and social marketing efforts for [the Petitioner] and its clients, 
including managing a relationship with a high-performing search and social 
agency; ensuing that that the company is optimizing keyword and bid strategies, 
continually improving ad copy, and frequently testing landing page variations 
to deliver the maximum return on company spending (5%) 
• Oversee and implement strategic social outreach research campaign on 
Facebook, Instagram, Snapchat, Linkedln, and Pinterest for [the Petitioner] and 
its clients (5%) 
• Oversee training of newly hired sales and marketing personnel in Search and 
Social Media Marketing - as a digital marketing consultant, [the Petitioner] is 
constantly managing big ad budgets spent on social and search platforms (5%) 
• Develop comprehensive industry level solutions for the metal buildings 
industry ( 10%) 
The initial statement of duties indicated that the Beneficiary will oversee various components of the 
Petitioner, such as account management, product development, and sales and marketing. While this 
overview of duties suggests that the Beneficiary holds a heightened degree of authority, it did not 
clarify what he would be doing on a day-to-day basis. For example, the Petitioner stated that the 
Beneficiary will "strive to acquire new key accounts in eCommerce, metal buildings, real estate, and 
interior design industries" and "forg[ e] strong communication and service legal agreement[ s] with 
clients, and that a combined 40% of his time would be devoted to these two tasks. The Petitioner did 
not explain how these duties fall within the definition of "executive capacity." Based on these 
statements, it appears that the Beneficiary is directly involved in client relations and will have 
substantial involvement in non-qualifying operational duties. 
Additionally, the Petitioner indicated that significant efforts will be made to launch marketing 
campaigns through social media platforms such as Facebook and Instagram. While the Petitioner 
claimed the Beneficiary will oversee such activities, it does not explain who will carry out these 
activities. While we acknowledge the Petitioner's claim that the Beneficiary will "oversee training of 
newly hired sales and marketing personnel," there is no indication that such personnel had been newly 
hired at the time of filing. As noted above, the Beneficiary's subordinates consist of the senior content 
specialist and trainer and the content specialist, who "partner[] with businesses to help them clarify 
their message in order to better connect with both current and future customers and clients," and 
"contribute[] a significant amount of content creation," respectively. The vague description of the 
duties of the Beneficiary's subordinates precludes a determination that they would be assisting the 
Beneficiary with marketing, sales, and promotion activities at the time of filing. 
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In response to the Director's request for evidence (RFE), the Petitioner provided a revised description 
of duties, indicating that the Beneficiary would "direct the hiring for the managerial, operational, and 
project level administrative functions and oversee the initial hiring phase of the managerial staff." It 
stated that since the filing of the petition, it had hired a third employee in the position of "Business 
Development Manager." The Petitioner provided the following updated description of the duties of 
the Beneficiary: 
(1) Direct the management of the organization or a major component or function 
of the organization 
[The Beneficiary] will initially direct the following components/functions: 
• Web/Software Project Management - It is crucial for [the Petitioner] to find, train, 
and foster a project manager and project coordinator who can take care of its current 
and forthcoming projects. With multiple clients onboard, [the Beneficiary] will focus 
on establishing and strengthening the project management department quickly, to 
continue offering superior services to its clients. [The Beneficiary] will hire 
individual(s) based on demonstrated expertise and train them on [the Petitioner's] 
policies, project management life cycle, and processes. It is crucial for [the 
Beneficiary] to initially manage talent during their initial setup after which they can 
perform the managerial functions with the [foreign entity] team. [The Beneficiary's] 
experience and knowledge of the intimate workings of [the foreign entity] are 
essential to ensure that operations between the U.S. and India companies are 
streamlined and established property. 
• Expand Digital Marketing Core Department - [The Beneficiary] will direct the 
development of Digital Marketing function by hiring, coaching, and positioning 
digital marketing supervisors in 2020. [The Beneficiary] is essential to the effective 
formation of new talent in this area. [The Petitioner has seen growth in 2019 and the 
company needs more people in right places so that clients can be served quickly and 
effectively. Any lag or hesitation in quality or service significantly undermine [the 
Petitioner's] expansion plan and [ the Beneficiary] is uniquely qualified to bring his 
expertise and insight to ensuring steady growth. Complex projects (Digital Ad, 
Digital display campaigns, organic social campaigns) need active communication. 
The conduit between [ the foreign entity] and [ the Petitioner] is currently missing, and 
[the Beneficiary] is the essential piece to serve as a conduit to ensure the success of 
[the Petitioner's] ambitious aspirations for expansion into the U.S. market. [The 
Petitioner's] Digital Marketing Department should consist of 2-3 people with one 
supervisor by the end of 2020 and we expect significant growth under [the 
Beneficiary's] uninterrupted leadership and direction. 
• Oversee [ the Petitioner's] Operations - [The Beneficiary] will oversee the overall 
growth of [ the Petitioner] and help it expand in terms of more USA based employees 
and stronger client contracts. He will hire Operations Managers once the company 
grows to 15+ employees (in different roles). It is imperative for [the Beneficiary] to 
establish policies, procedures, and protocols that the Operations Manager can utilize 
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(and build upon) to grow [the Petitioner] into a World-Class Digital marketing and 
Software Development firm. 
• Under [the Beneficiary's] unique background and demonstrated track record of 
success, we expect significant growth under [the Beneficiary's] uninterrupted 
leadership and direction. He will be responsible for successful implementation of 
strategic plans and monitor these functions and subordinate personnel. 
(2) Establish the goals and policies of the organization, component, or function 
The Beneficiary will ensure achievement of company objectives and financial targets 
established in concert with [the foreign entity] while posturing for continued growth of 
[the Petitioner]. 
In addition to the above-mentioned major components and functions, [the Beneficiary] 
will also be responsible for setting up a semi-automated Administrative Department 
which will require utilization of software and an external service (yet to be identified). 
The Administrative Department will set up payroll, office management, work hour 
policies, phone usage policies, bonus policies, employee onboarding policies, etc. 
[The Beneficiary] has significant authority over formation and implementation of 
company policy and will assist with the creation of [the Petitioner's] overall vision, 
mission, values, beliefs, and strategic goals. As stated above, it is imperative for [the 
Beneficiary] to establish policies, procedures, and protocols that the Operations Manager 
can utilize (and build upon) to grow [the Petitioner] into a World-Class Digital Marketing 
and Software Development firm. 
(3) Exercises wide latitude in discretionary decision-making 
[The Beneficiary] will have broad-based discretionary authority and be accountable for 
all activities involving business development and company management of [the 
Petitioner]. He will fill this position at a very high level of the company corporate 
hierarchy and will work in concert with the President of [the Petitioner]. 
(4) Receives only general supervision from higher level executives, the board of 
directors, or stockholders of the organization. 
[The Beneficiary] will work closely with the President of [the Petitioner], the Sole 
Director and Shareholder 1 of [the Petitioner], but as [the Beneficiary] is the Founder and 
CEO of [the foreign entity] and is planning on assisting with the development of the 
company's "new office" in the US, he will set his own daily activities. 
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 
1 This statement contradicts the assertion that the Beneficiary is the majority shareholder of the Petitioner. 
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that person's authority to direct the organization. Section 10l(a)(44)(B) of the Act. To show that a 
beneficiary will "direct the management" of an organization, a petitioner must show how the 
organization is managed and demonstrate that the beneficiary will 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. 
In its RFE response, the Petitioner reiterates the prongs that comprise the definition of executive 
capacity and continues to make broad statements about the Beneficiary's discretionary authority 
without providing evidence to support its claims. Regarding its claim that the Beneficiary will direct 
the management of the company, the Petitioner stated that the Beneficiary will "ensure achievement 
of company objectives and financial targets." The Petitioner further stated that the Beneficiary will 
oversee its operations, specifically the development of its web/software project management team and 
the development of its digital marketing function. Specifically, the Petitioner claimed that the 
Beneficiary will hire, coach, and position digital marketing supervisors in the U.S. entity, and "find, 
train, and foster a project manager and project coordinator who can take care of its current and 
forthcoming projects." The Petitioner noted that with multiple clients onboard, the Beneficiary must 
focus on establishing and strengthening the project management department quickly in order to 
sufficiently service its clients, as well as ensure appropriate staffing is in place in the digital marketing 
department to ensure the Petitioner's success in the U.S. market. The Petitioner concluded that once 
these goals are achieved, the Beneficiary will "be responsible for successful implementation of 
strategic plans and monitor these functions and subordinate personnel." 
The Petitioner's organizational chart submitted in response to the RFE, however, indicates that the 
Beneficiary's subordinate employees include the senior content specialist and trainer, the content 
trainer, and the newly-hired business development manager. Although it is likely that the Beneficiary 
would have a level of discretion that is consistent with that of an executive, the Petitioner has not 
established that he will primarily implement strategic plans and monitor the functions noted above. 
Despite the presence of three subordinate employees, there is no indication that these individuals 
contribute to the performance of the marketing or product management functions identified above. 
Although the Petitioner claims that the Beneficiary will hire the claimed digital marketing supervisors 
and the project manager and project supervisor, which the Petitioner claims are essential to its 
operations due to the number of existing clients it must serve, the absence of staff required to perform 
the essential sales and marketing functions raises questions regarding the true role of the Beneficiary. 
Given the Petitioner's claim that the Beneficiary will primarily perform executive functions once these 
hiring goals are achieved, it appears that either the Beneficiary himself is performing the marketing 
and project management operations and functions or he does not actually manage these operations and 
functions as claimed by the Petitioner. In either case, we are left to question the validity of the 
Petitioner's claim and the remainder of the Beneficiary's claimed duties. Doubt cast on any aspect of 
the Petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582,591 (BIA 
1988). If the Beneficiary is performing the marketing and project management operations and 
functions, we note that an employee who primarily performs the tasks necessary to produce a product 
or to provide services is not considered to be "primarily" employed in a managerial or executive 
capacity. Matter of Church Scientology Int'!, 19 I&N Dec. 593,604 (Comm'r 1988). Based on these 
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observations, it is unclear how the Beneficiary would be able to "direct the management" of the 
organization as claimed by the Petitioner. 
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." Section 10l(a)(44)(B) of the Act. Here, the Petitioner states that the Beneficiary 
"will have broad-based discretionary authority and be accountable for all activities involving business 
development and company management," "will assist with the creation of [the Petitioner's] overall 
vision, mission, values, beliefs, and strategic goals," and "will set his own daily activities." However, 
these vague phrases do not explain the actual underlying tasks that the Beneficiary would carry out on 
a daily basis. Aside from establishing that the Beneficiary has discretion over operational and policy 
matters, it is unclear precisely what the Beneficiary would actually be doing. 
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 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. 
In response to the RFE, the Petitioner updated its statement of duties to indicate that the Beneficiary 
will be tasked with hiring various managerial positions not yet established within the U.S. entity. For 
example, it stated that the Beneficiary will hire a project manager and a project coordinator, because 
it is "crucial" that the Petitioner "find, train, and foster a project manager and project coordinator who 
can take care of its current and forthcoming projects." The Petitioner also stated that the Beneficiary 
will hire, coach, and position digital marketing supervisors in the U.S. entity, and estimates that he 
will hire 2-3 individuals for the digital marketing department, with one supervisor, by the end of 2020. 
The Petitioner also submitted a hiring plan, which indicates that the Petitioner intends to hire a sales 
manager and a sales representative, a digital ads manager and digital ads representative, a full stack 
programmer, and a content writer within the Beneficiary's first year of employment, with additional 
employees to be hired by the second year of his employment. 2 
2 The Petitioner repeatedly refers to the U.S. entity as a "new office" and indicates that the Beneficiary will be tasked with 
overseeing the "initial hiring phase of the managerial staff." When a new business is established and commences 
operations, the regulations recognize that a designated manager or executive responsible for setting up operations will be 
engaged in a variety of activities not normally performed by employees at the executive or managerial level and that often 
the full range of managerial responsibility cannot be performed. The Petitioner, however, was established in 2016, and 
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Although the Petitioner claims that it has sufficient lower-level staff to allow the Beneficiary to 
primarily focus on the broad policies and goals of the organization, and to remove him from significant 
involvement in the day-to-day operations of the company, the record does not support that claim. 
According to the Petitioner, it has "multiple clients on board" and "the company needs more people 
in right places so that clients can be served quickly and effectively." The Petitioner indicates, however, 
that it does not have sufficient staff available to meet its clients' needs. Although the Beneficiary had 
two documented subordinates at the time of filing, the Petitioner did not articulate to what extent, if 
any, the senior content specialist and trainer and content specialist serve clients or relieve the 
Beneficiary from performing non-qualifying duties such as the sales and marketing functions 
discussed above. 3 
Moreover, the Petitioner claims in its hiring plan that it intends to hire numerous employees within 
12-18 months, and states that the majority of their training will be conducted remotely by employees 
of the foreign entity. No evidence to support this assertion was submitted, and we note that this claim 
directly contradicts the updated statement of duties submitted in response to the RFE where the 
Petitioner claims that the Beneficiary himself will train these new individuals. On appeal, the 
Petitioner asserts that the Director erroneously disregarded the statements set forth in the hiring plan, 
and claims that the hiring plan outlined how the foreign entity's employees "will fill in for necessary 
planning and administrative functions to alleviate [the Beneficiary] from performing the 
non-qualifying day-to-day duties." Again, the record contains no evidence to corroborate these claims. 
The Petitioner has not sufficiently established that the foreign staff assist the Petitioner with its 
day-to-day operations or remove the Beneficiary from involvement in non-executive duties, such as 
the training, client relations, and sales and marketing functions stated in his job description. 
Here, the Petitioner has not explained how the Beneficiary is able to perform primarily executive 
duties with two subordinate employees, nor has it provided sufficient evidence of how the Petitioner 
was able to meet the needs of its clients with no subordinate operational or administrative staff based 
in the United States. As a result, there are a number of non-executive functions which were not clearly 
delegated to subordinate staff when the petition was filed. 
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). 
Therefore, while we acknowledge that the Petitioner was engaged in recruitment efforts when the 
petition was filed, we find that the Director properly considered the company's actual staffing levels 
at the time of filing when evaluating the Beneficiary's employment capacity. We have interpreted the 
statute to prohibit discrimination against small or medium-size businesses. However, we have also 
indicates on the L Classification Supplement to the petition that the Beneficiary is not coming to the United States to open 
a new office. The Petitioner, therefore, is not considered a "new office" as contemplated by the regulation at 8 C.F.R. 
§ 2 l 4.2(1)(3)(v). The regulations applicable to new offices allow a newly established petitioner one year to develop to a 
point where it can support the employment of a beneficiary in a managerial or executive capacity. See generally 8 C.F.R. 
§ 214.2(1)(3)(v)(C). The Petitioner, as an existing office that has been doing business for four years, 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). 
3 Although the Petitioner indicated in its RFE response that it hired a business development manager, the record reflects 
that this individual was hired subsequent to the filing of the petition. As noted above, 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). 
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consistently interpreted that Act to require petitioners to establish that the beneficiary's position 
"primarily" consists of executive duties, and that it has sufficient personnel to relieve a beneficiary 
from performing operational and administrative tasks. The reasonable needs of a petitioner will not 
supersede the requirement that a beneficiary be "primarily" employed in a managerial or executive 
capacity as required by the statute. Brazil Quality Stones v. Chertojf, 531 F.3d 1063, 1070 n. l 0 (9th 
Cir. 2008). 
Based on the nature of the company and its documented staffing levels, the Petitioner has not shown 
that it requires the Beneficiary to primarily perform the higher-level planning, policy-making, and 
business development duties attributed to him. Accordingly, the Petitioner has not established that he 
will be employed in an executive capacity. 
III. CONCLUSION 
The appeal will be dismissed because the Petitioner did not establish that it will employ the Beneficiary 
in an executive capacity. 
ORDER: The appeal is dismissed 
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