dismissed L-1A Case: Dosage Regulation Devices

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-USA, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 14,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a North Carolina limited liability company, is looking to open and operate a new 
office that assembles dosage regulation devices. Accordingly, the Petitioner seeks to temporarily 
employ the Beneficiary as a managing member of its new office under the L-1 A nonimmigrant 
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-1A 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. 
I 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not submit sufficient evidence to establish the following: (1) it secured sufficient 
physical premises to house its business operation; (2) the Beneficiary was employed abroad in a 
managerial or executive capacity; and (3) it would support the Beneficiary in the United States in a 
managerial or executive capacity within one year of approval of the petition. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief disputing all three 
grounds as valid bases for denial. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, 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, executive, or specialized knowledge 
capacity. !d. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
Matter of E- USA, LLC 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(l)(l)(ii)(G) ofthis section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that the 
alien's prior education, training, and employment qualifies him/her to perform 
the intended services in, the United States; however, the work in the United 
States need not be the same work which the alien performed abroad. 
In addition, the regulation at 8 C.P.R. § 214.2(1)(3)(v) states that if the petition indicates that the 
beneficiary is coming to the United States as a manager or executive to open or to be employed in a 
new office, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial 
capacity and that the proposed employment involved executive or managerial 
authority over the new operation; and 
(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
(3) The organizational structure 'of the foreign entity. 
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Matter of E- USA, LLC 
II. PHYSICAL PREMISES 
The first issue to be addressed in this discussion is whether the Petitioner provided evidence to show 
that it meets 8 C.F.R. § 214.2(1)(3)(v)(A), which requires the Petitioner to establish that it obtained 
sufficient physical premises to house the new office. As with all statutory and regulatory 
requirements, a petitioner must establish eligibility at the time of filing and must continue to be 
eligible for the benefit through adjudication. 8 C.F.R. § 103.2(b)(1). 
In the present matter, the evidence the Petitioner provided initially in support of the petition did not 
establish that it had secured the required physical premises to house its new business operation. 
Accordingly, the Director issued a request for evidence (RFE), which addressed this, among other 
evidentiary deficiencies, asking the Petitioner to provide evidence showing that it had acquired 
sufficient premises to house its new office operation at the time the petition was filed. 
In response, the Petitioner provided an office lease showing December 1, 2015 as the date of 
execution. 
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Upon reviewing the above, the Director denied the petition, concluding that the Petitioner did not 
meet the filing requirement discussed at 8 C.F.R. § 214.2(1)(3)(v)(A) because the submitted office 
lease was executed five months after the petition was filed and therefore sufficient physical premises 
were not secured as of the date the petition was filed. 
On appeal, the Petitioner objects to the Director's decision, contending that the denial is based on "a 
dubious and meaningless technicality whose application benefits nobody." The Petitioner also 
claims that "different premises were listed at the time of filing, with an upgrade to better premises 
during the wait for adjudication." The Petitioner did not, however, provide any evidence, such as a 
lease, to establish that the mailing address provided in the petition represented the address of a 
physical business premises that the petitioner had secured prior to filing. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (quoting Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Further, the Petitioner contends that the Director fail,ed to take into account the "near-perfect 
suitability" of the business premises it secured after filing the petition. However, the suitability, or 
lack thereof, of the business premises that the Petitioner obtained after filing the petition is 
irrelevant, given the lack of probative value of a document, i.e., an office lease with a December 1, 
2015 date of execution, that does not establish the Petitioner's eligibility at the time of filing. 
Given the lack of evidence to establish that the Petitioner complied with the regulatory provision at 
8 C.F.R. § 214.2(1)(3)(v)(A), leads us to the conclusion that the Petitioner had not secured sufficient 
business premises as of the date the petition was filed. Therefore, the instant petition cannot be 
approved. 
3 
) 
Matter of E- USA, LLC 
III. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on the finding that the Petitioner did not establish that the 
Beneficiary was employed abroad in a primarily executive or managerial capacity or that the 
Petitioner would be able to support the Beneficiary in a managerial or executive capacity within one 
year of the petition's approval. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee is 
directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) 
(ii) 
(iii) 
(iv) 
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. 
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(b)(6)
Matter of E-USA, LLC 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must 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) ofthe Act. 
A. Employment Abroad 
The Director denied the petition, in part, based on the finding that the Beneficiary's employment 
with the foreign entity was not in a managerial or executive capacity. Therefore, we will address 
this issue in a discussion below. . 
1. Evidence of Record 
At section 1(3) of the Form 1-129 L Classification Supplement, the Petitioner stated that the 
Beneficiary was employed abroad by a 
Brazilian entity. At section 1(6) of the same form, the Petitioner provided the following description 
of the Beneficiary's former employment abroad: 
General manager of Brazil parent company. Strategic planning, superv1s1on of 
development and delivery of products and services to about 150 customers including 
the Brazilian 
In addition, the petitioner provided the foreign entity's work chart showing the Beneficiary at the top 
of the organizational hierarchy as the company's president, followed by the vice president as his 
immediate subordinate. The vice president is depicted as overseeing employees in four work 
categories -projects, administration, engineering, and sales- and the bottom tier of the chart lists 
nine individuals under the subheading "Technical," indicating that they are subordinate to the 
employee in the engineering category. 
The organizational chart was accompanied by lists of the foreign entity's employees and contractors, 
listing each individual by name and position title and providing their respective educational levels. 
After reviewing the evidence, the Director determined that the Petitioner did not establish that the 
Beneficiary was employed abroad in an executive capacity. Accordingly, the Director addressed this 
evidentiary deficiency in the RFE, instructing the Petitioner to provide a detailed description of the 
Beneficiary's typical job duties and to describe the foreign entity's organization in greater detail and 
to provide each employee's summary of duties. 
In response, the Petitioner provided the following: 
• Strategic Planning: 30% 
Evaluating data concerning company strengths and weaknesses. Making the big 
decisions about the company's future. Deciding on product mix, which customers to 
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(b)(6)
Matter of E- USA, LLC 
I 
pursue, improving company performance, expanding markets, setting and monitoring 
financial goals. 
Selected accomplishments: 
o Saved $600,000 by incorporating continuous process improvement, business 
process outsourcing, and cost reduction strategies. 
o Generated $900,000 in incremental revenue by new products and new 
services. 
• Supervising Production: 20% 
Recruiting and cultivating top-notch talent through effective trammg and 
personalized, talent-based placement. Developing and incorporating solid process for 
new technology, project management, billing, and manpower planning. 
Selected accomplishments: 
o Created more than five new products and services. 
o Retained more than $250,000 through successful planning and execution of 
"roadmap" used to increase service options and maximize operational 
excellence. 
o Saved $190,000 with optimization of processes through the acquisition of new 
equipment for the manufacture. 
• Supervising Marketing: 10% 
Monitoring and improving personnel in sales department, including all aspects 
involved in creating a complete presentation of the organization's image via website, 
advertising, and trade shows. 
Selected accomplishments: 
o Increased employee productivity 30% by introducing incentive[-]based sales 
compensation plans. 
o Achieved 28% statewide overall improvement in customer satisfaction. 
o Leveraged market impact and drove growth by implementing new market 
segmentation strategies. 
o Solid growth of 15% of earnings year-over-year. 
• Supervising Human Resources: 10% 
Monitoring and improving personnel doing the selection, training, and performance 
evaluation of company employees and contractors. Profitability and employee 
development. 
Selected accomplishments: 
o Achieved 95% YOY employee retention by creating a driven, engaged 
workforce environment. 
o 
A warded top human resources recogmt10n for employee development and 
retention through proactive recruitment, training, and personalized placement 
based on employee aspirations and talents. 
o Created development program for training and 
professional development. 
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Matter of E- USA, LLC 
• Supervising Financial Matters: 30% 
Monitoring and improving personnel handling bidding, payables, receivables, 
investments, and daily cash flow. · 
Selected accomplishments: 
o Reduced budget variance from 25% to 2% by devising comprehensive 
capital/expense budgeting procedures. 
o Improved budget development accuracy by introducing automated forecasting 
tools and incorporating statistical process controls from previous manual 
system. 
The Director determined that the submitted job description was vague and provided little insight as 
to the Beneficiary's daily job duties. The Director also found that the Petitioner did not provide 
sufficient information about the Beneficiary's subordinates, nor evidence establishing a complex 
organizational hierarchy that warranted and was able to support the Beneficiary in an executive 
position. The Director therefore denied the petition, concluding that the Petitioner did not establish 
that the Beneficiary was employed abroad in an executive capacity. 
2. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established. that the Beneficiary was employed in 
abroad in a managerial or executive capacity. 1 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
description of the job duties. See 8 C.P.R. § 214.2(1)(3)(iv). Published case has determined that the 
duties themselves will reveal the true nature of the beneficiary's employment. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Therefore, we 
look for a job description that clearly describes the job duties the Beneficiary performed. 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary performed 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 was primarily engaged in managerial or executive duties, as opposed to ordinary 
operational activities alongside the company's other employees. See Family Inc. v. USCIS, 469 F.3d 
1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
Looking to the job description the Petitioner provided in its RFE response, we concur with the 
Director in finding that the Petitioner provided job duties that are overly vague and provide 
insufficient information as to what tasks the Beneficiary performed during his employment abroad. 
For instance, the claim that 30% of the Beneficiary's time was spent evaluating the company's 
1 While the Director made his findings within the context of the statutory definition of executive capacity, our decision 
will reflect consideration ofthe statutory definitions of managerial and executive. 
7 
Matter of E- USA, LLC 
strengths and weaknesses, making decisions about products and customers, and establishing 
financial goals does not provide an adequate understanding of what underlying tasks those job 
responsibilities entail and what role the foreign entity's support staff assumed in allowing the 
Beneficiary to meet those responsibilities. The job description is similarly deficient in describing 
how the Beneficiary supervised production, an activity that consumed another 20% of his time. 
While the Petitioner indicated that selecting the right employees and training them was integral to 
supervising production, it is unclear how these tasks, which are generally associated with tasks 
performed by human resources personnel, can be deemed as fitting within the scope of an executive 
capacity position. More importantly, the Petitioner indicated that the Beneficiary created new 
products and services as part of his supervisory role with regard to production. However, the 
Petitioner did not establish that creating products and services are accomplishments that are 
' indicative of job duties carried out in an executive capacity. 
Next, the Petitioner focused on the Beneficiary's responsibilities in monitoring personnel in the sales 
department, which appears to have been comprised of a single individual, and monitoring and 
improving staff in general through training and p'erformance evaluations. While these job duties 
cumulatively comprised 20% of the Beneficiary's time, it is unclear how they can be deemed as 
executive-level tasks or why the Beneficiary had a role in performing them when the foreign entity's 
organizational chart expressly shows a vice president separating the Beneficiary from the rest of the 
company employees. In other words, the chart appears to be inconsistent with this job description, 
which indicates that the Beneficiary had a direct role in overseeing the company's staff and affecting 
their performance. It is unclear what specific role. was assumed by the Beneficiary's immediate 
subordinate, who was depicted as the company's vice president and purportedly served as the direct 
manager or supervisor over the employees who carried out four key functions, including sales, 
engineering, administration, and projects. Similarly, the Petitioner did not establish that the 
Beneficiary's role in monitoring and improving personnel who carry out various operational and 
administrative tasks fits the criteria of executive capacity. 
While the Beneficiary undoubtedly assumed the top-most position and made numerous discretionary 
decisions that affected the foreign entity, his placement within the foreign entity's organizational 
hierarchy and his discretionary decision-making authority are not sufficient to establish that the 
nature of the Beneficiary's underlying job duties were those of an executive. 
Beyond the required description of the job duties, U.S. Citizenship and Immigration Services 
(USCIS) reviews the totality of the record when examining the claimed managerial or executive 
capacity of a beneficiary, including 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. 
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 
8 
Matter of E-USA, LLC 
Act, 8 U.S.C. § 1101(a)(44)(B). 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 the 
owner or sole managerial employee. A beneficiary must also exercise "wide latitude in discretionary 
decision making" and receive only "general supervision or direction fr6m. higher level executives, 
the board of directors, or stockholders of the organization." !d. 
Here, there is little evidence to support the conclusion that the Beneficiary was employed abroad in 
an executive capacity. First, as previously mentioned, the foreign entity was not comprised of a 
complex organizational hierarchy. Rather, the organizational chart shows a single employee - the 
company's vice president- separating the Beneficiary from the employees who actually carried out 
the company's operational and administrative tasks. However, despite the separation that was 
artificially created by the foreign entity's organizational chart, the Beneficiary's job description 
indicates that the Beneficiary had a direct supervisory role over the foreign entity's personnel and 
rather than focusing his time on directing the management of the organization, which, again appears 
to have been comprised of only the vice president, the Beneficiary appears to have been actually 
managing the entire operation along with its staff. As the Petitioner neglected to provide summary 
job descriptions of the foreign entity's staff, it is unclear precisely, what role, if any, the vice 
president actually had in relieving the Beneficiary from having to carry out the nonexecutive 
functions. That said, the lack of job descriptions for the foreign entity's personnel hinders our ability 
to fully evaluate what job duties the support staff carried out and how their efforts affected the 
Beneficiary's ability to focus his time primarily on executive functions. 
Finally, while there is no indication that the Petitioner's claim regarding the Beneficiary's position 
abroad incoiporated the statutory definition of managerial capacity, we find that even if the 
Petitioner had made such a claim, the evidence of record is not sufficient to support it. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10l(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. The statute plainly states that a "first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional." Section 101(a)(44)(A)(iv) of the Act; 8 , C.F.R. 
§ 214.2(l)(l)(ii)(B)(4). If a beneficiary directly supervises other employees, the beneficiary must 
also have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. 8 C.F.R. § 214.2(l)(l)(ii)(B)(3). · 
In light of the deficiencies cited above with regard to the Beneficiary's job description and the lack 
of information pertaining to the foreign entity's support personnel, we cannot conclude that the 
Beneficiary was employed either as a personnel manager, such that he would have spent his time 
9 
Matter of E- USA, LLC 
primarily on managing supervisory, professional, or managerial subordinates, or that he assumed the 
role of a function manager, such that he would have largely refrained from managing others and, 
insteaq, focused his time primarily on managing an essential function of the organization. 
/ 
B. U.S. Employment 
The Director also denied the petition, in part, based on the determination that the Petitioner did not 
establish that it would support the Beneficiary in a managerial or executive capacity within one year 
of the approval of the petition. 
1. Evidence ofRecord 
In response to sectiond(7), Form I-129 L Classification Supplement, which asked the Petitioner to 
provide a description of the Beneficiary's proposed job duties, the Petitioner indicated that the 
description of the Beneficiary's employment abroad at section 1(6), Form I-129 L Classification 
Supplement, should be applied. The foreign job description indicated that the Beneficiary was 
employed as a general manager and that his main concerns included strategic planning and 
supervising the development and delivery of products and services to customers. 
The Petitioner also provided an executive summary, which includes a brief discussion of the 
Petitioner's investment and its business purpose. The Petitioner indicated that in order to deploy the 
initial phase of its operation, it would need to employ one administrat!ve employee and two 
employees who will assemble machines and equipment. 
In the RFE, the Director informed the Petitioner that the record does not contain sufficient evidence 
demonstrating that the new office will support the Beneficiary in a managerial or executive position 
within one year of the petition's approval. Therefore, the Director asked the Petitioner to provide a 
more specific business plan discussing timetables and business benchmarks over the course of the 
Petitioner's initial year of operation. The Director instructed the Petitioner to describe how it plans 
to achieve growth and expansion of the new office by stating what the Beneficiary and any other 
business staff will do in order to ensure that the Petitioner is fully operational within one year of the 
petition's approval and by providing a personnel plan demonstrating how the Petitioner will gain the 
ability to relieve the Beneficiary from having to primarily perform nonmanagerial or nonexecutive 
job duties at the end of that one-year time period. 
In response, the Petitioner provided an eight-part business plan consisting of an executive summary, 
a market analysis, a marketing plan, an operational plan, a financial plan, forecasting scenarios, a 
strategic evaluation, an analysis matrix, and a business plan evaluation. 
After reviewing the evidence, the Director determined that the Petitioner did not fully explain how it 
will conduct its business or establish that the nature of the business is such that will support the 
Beneficiary in a primarily managerial or executive capacity within one year of the petition's 
approval. The Director found that the Petitioner did not provide documentation establishing how the 
10 
I 
Matter of E-USA, LLC 
new office would grow and achieve its projected business goals or what the Beneficiary and his staff 
would do to get the Petitioner to a fully operational status within one year of approval. 
2. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary will be employed 
in the United States in a managerial or executive capacity within one year of approval of the petition. 
As stated in our earlier discussion of the Beneficiary's employment abroad, when examining the 
managerial or executive capacity of the Beneficiary, we look first to the Petitioner's description of 
the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The Petitioner's description of the jol? duties must 
clearly describe the duties performed by the Beneficiary and indicate whether such duties are in a 
managerial or executive capacity. /d. 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary performs and 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 is and will be primarily engaged in managerial or 
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. 
In addition, it is important to note that when a new business is established and commences 
operations, the regulations recognize that a designated manager or executive responsible for or 
assisting with the set-up of 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 or executive responsibility cannot be performed. In order to qualify for L-1 
nonimmigrant classification during the first year of operations, the regulations require the petitioner 
to disclose the business plans and the size of the United States investment, and thereby establish that 
the proposed enterprise will support an executive or managerial position within one year of the 
approval of the petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). This evide:p.ce should demonstrate a 
realistic expectation that the enterprise will succeed and rapidly expand as it moves away from the 
developmental stage to full operations, where there would be an actual need for a manager or 
executive who will primarily perform qualifying duties. 
In the present matter, we find that the Petitioner did not provide sufficient evidence to establish that 
it would have the ability to support the Beneficiary in a managerial or executive position within one 
year of approval of the petition. 
As indicated above, it is critical to consider the Beneficiary's proposed job duties and the 
organizational structure within which he would perform those duties in order to assess the 
Petitioner's eligibility. The Director expressly noted that the Petitioner's original submissions 
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Matter of E-USA, LLC 
lacked inform(;ltion about the duties of the Beneficiary and any other staff. While the Beneficiary is 
not expected to carry out primarily managerial or executive tasks during the Petitioner's first year of 
operation as a new office, a discussion of the Beneficiary's job duties and those of any other staff the 
Petitioner plans to employ during its first year of operation would' nevertheless serve as one of 
several critical components in determining the likelihood that the Petitioner will become fully 
operational and be able to relieve the Beneficiary from having to primarily perform nonmanagerial 
or nonexecutive duties one year after the petition's approval. Here, the Petitioner did not provide a 
description of the Beneficiary's job duties or the job duties of the projected support staff during its 
first year of operation. In fact, while the Petitioner included a "Personnel Requirement" list at 
section 4.4 of the business plan, it did not provide a timeline for hiring an administrative assistant, an 
assembler of machines, an administrative manager, and a sales person, which are the four positions 
that the Petitioner listed in its hiring plan. 
We further note that section 5.9 of the business plan lists the monthly labor costs for employing an 
administrative assistant, a machine assembler, an administrative manager, and an operational leader. 
However, this section, like section 4.4, also lacks a hiring time line and, to the extent that section 5.9 
includes an operational leader as part of the hiring plan, it is inconsistent with section 4.4 ofthe plan, 
which did not include an operational leader. The Petitioner also neglected to provide hiring 
projections going beyond the first year of operation. As such, we are unable to determine how the 
Petitioner's personnel plan will change going forward and what staffing composition it foresees as 
necessary to relieve the Beneficiary from having to allocate his time primarily to nonmanagerial and 
nonexecutive tasks. While no beneficiary is required to allocate 100% of his time to managerial- or 
executive-level tasks, each petitioner must establish that the non-qualifying tasks its beneficiary 
would perform are only incidental to the pr9posed position. 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. See sections 101(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also 
Matter of Church Scientology Int '1,.19 I&N Dec. 593, 604 (Comm'r 1988). 
We also find that further explanation is needed to allow for a meaningful understanding of the 
information provided in section 5.2(B) of the business plan, where the Petitioner created charts 
containing calculations of accounts receivable, suppliers and shopping calculations, calculation of 
inventory and stock requirements, and "[ c ]alculation of net need for working capital in days." The 
Petitioner did not explain how to interpret the various calculations or clarify how to apply these 
figures within the scope of the Petitioner's business income and expenses. For instance, the 
accounts receivable chart at section 5.2(B) Step 1 includes four columns - "medium term sales," 
"%," "number of days," and "average weighted days" - which were used to calculate the "[t]otal 
medium term." The Petitioner did not explain how this data should be interpreted or the significance 
of the data in understanding the Petitioner's business operation. The Petitioner included the same 
four columns in the chart at Step 2 titled "Suppliers- mid-term shopping calculation." However, it 
is unclear how these calculations are to be applied or how they add to an understanding of supplier 
costs within the scope of the business operation. 
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Matter of E-USA, LLC 
Next, we look to section 5.13 of the business plan, where the Petitioner stated that $168,000 would 
be its "Breakeven" point after the first year of operation. However, it is unclear how this 
information fits with the section 5.12 chart on the Petitioner's statement of income. Namely, the 
chart indicates that the Petitioner anticipates total revenue from sales to total $228,000 with a net 
operating profit of $36,960. In light of these income projections, it is unclear how the Petitioner 
arrived at the "breakeven" amount and whether that amount is based on the gross revenues or the net 
income. We further note that the Petitioner's calculation of fixed costs in the chart at section 5.11 
does not match the total fixed cost figure that was used in section 5.12 to calculate the statement of 
income. While the chart in the former section states that fixed monthly costs will total $8300, the 
statement of income chart indicates that the fixed costs will be $8400, for a difference of $100 
between the two charts. 
Lastly, the Petitioner provided a "Summary of Initiatives" section followed by a more detailed 
description of each initiative and the personnel required to carry out the initiative. In its discussion 
of the third initiative - start of sales and marketing activities - the Petitioner indicated that a sales 
staff would be tasked with marketing and selling its products and services. However, only section 
4.4 of the business plan actually included projections for hiring a "salesman" and the only 
information about the sales expense was included in the chart at section 5.7, which indicates that the 
Petitioner plans to incur a 5% commission expense. There is no indication that the Petitioner plans 
to pay a base salary or wages to its sales person. As such, it appears that the sales staff would not be 
compensated (outside of the 5% sales commission) for carrying out peripheral tasks, like attending 
trade shows and tending to the Petitioner's website. The Petitioner also indicated that the production 
staff- comprised of an engineering, a purchasing, and a production department - would carry out 
the fourth initiative associated with manufacturing, testing, and delivering the Petitioner's products 
to its customers. However, as the Petitioner did not list the job duties that would be assigned to the 
staff it seeks to hire during its first year of operation, it is up.clear who would be responsible for 
carrying out the engineering, production, or purchasing tasks. While the Petitioner also made 
references to a "management staff' and an "external staff' as resources who would help execute 
initiatives five and six, respectively, the Petitioner did not indicate which positions would comprise a 
management and an "external" staff, when such staffing positions would be filled, or what job duties 
they would carry out. 
On appeal, the Petitioner refers to "the years of successful sales abroad" and the potential use of the 
Petitioner's products. The Petitioner argues that the Director does not have proper understanding of 
the nature of the products the Petitioner offers and that the Director did not take into account its list 
of potential customers or the purchase order in the amount of $45,000. However, neither the list of 
potential clients nor the existing purchase order is sufficient to overcome the numerous deficiencies 
in the Petitioner's business plan. 
In light of the above analysis of the Petitioner's business plan, we find that the Petitioner did not 
provide sufficient evidence to substantiate that it would advance to a stage of development wherein 
it would have the capability of relieving the Beneficiary from having to devote considerable portions 
of his time to nonmanagerial or nonexecutive tasks ~ithin one year of the petition's approval, and 
13 
Matter of E- USA, LLC 
the Beneficiary would therefore be unable to allocate his time primarily to job duties that are in a 
managerial or executive capacity. 
IV. EMPLOYER-EMPLOYEE RELATIONSHIP 
In addition, ,while not addressed by the Director, two remaining issues to be examined are (1) 
whether the Petitioner established that the Beneficiary and the foreign entity had an employer­
employee relationship at the time of the Beneficiary's claimed employment abroad and (2) whether 
the Petitioner would have such a relationship with the Beneficiary in the United States. 
Section 101(a)(l5)(L) of the Act states that only aliens who were "employed" abroad and are 
coming to the United States "to continue to render services to the same employer or to an affiliate or 
subsidiary thereof' Will merit classification as an intracompany transferee. The L-1 A classification 
allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying 
foreign employee to the United States, where he will be temporarily employed in a managerial or 
executive capacity. This is in contrast to provisions in the Act, such as section 101 ( a)(l5)(E), which 
permits the alien to file a nonimmigrant petition on behalf of himself or herself provided that the 
alien meets certain other conditions regarding a treaty trader or treaty investor. 
The factors of ownership~ and control are critical in determining whether the Beneficiary had an 
employer-employee relationship with his employer abroad and whether he would have such a 
relationship with the Petitioner. See Clackamas Gastroenterology Assocs. P. C. v. Wells, 538 U.S. 
440,451 (2003) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,324 (1992)). 
In the matter at hand, the record indicates that while the foreign entity directly owns the Petitioner, 
the Beneficiary directly owns the majority of and controls the foreign entity, thereby resulting in his 
indirect ownership and control of the Petitioner. The record indicates that the Beneficiary assumed 
the top-most position within the foreign entity's organization and that the same would be true of the 
Beneficiary's proposed position with the Petitioner. Thus, by virtue of owning and controlling both 
the Petitioner and the foreign entity that owns the Petitioner, and absent other evidence relevant to an 
employer-employee analysis, the record does not establish that the Beneficiary had or would have 
the requisite employer-employee relationship with either entity. This issue must be addressed in any 
future filings. 
V. CONCLUSION 
The petition will be denied and the appeal dismissed for 'the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, the 
burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 
ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has 
not been met. 
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Matter of E-USA, LLC 
ORDER: The appeal is dismissed. 
Cite as Matter ofE-USA, LLC, ID# 27081 (AAO Oct. 14, 2016) 
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