dismissed L-1A Case: Drapery And Blind Manufacturing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-D-A-B- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY22,2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a designer and manufacturer of drapes and blinds, seeks to temporarily employ the 
Beneficiary as a manager and director of operations under the L-1 A nonimmigrant classification for 
intracompany transferees. Immigration and Nationality Act (the Act) section IOI(a)(l5)(L), 
8 U.S.C. § IIO!(a)(l5)(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 record did not 
establish that the Beneficiary would be employed in a managerial or executive capacity. The 
Director also determined that the Petitioner did not demonstrate that the Beneficiary acted in an 
executive capacity with the foreign employer. 
On appeal, the Petitioner asserts that the Director erred by focusing on whether the Beneficiary 
qualifies as a manager in the United States and emphasizes that she qualifies as an executive. In 
addition, the Petitioner contends that the Beneficiary oversaw several drapery and blind stores 
abroad, each with its own store director, managers, and operational employees, thereby qualifying 
her as an executive. 
Upon de novo review, we will dismiss the appeal as the Petitioner did not establish that the 
Beneficiary will act in a managerial or executive capacity in the United States. We will, however, 
withdraw the Director's decision with respect to the Beneficiary's toreign employment in a 
managerial or executive capacity. 1 
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 
1 The Petitioner provides a sufficiently detailed description of the Beneficiary's foreign duties, payroll documentation, 
and other supporting evidence indicating that the Beneficiary oversaw store locations with subordinate directors 
supervising operational level employees. The Petitioner demonstrated that the Beneficiary more likely than not acted as 
a personnel manager supervising subordinate managers while overseeing several drape and blind stores in Canada. 
Matter ofS-D-A-B- LLC 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 10l(a)(I5)(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. Jd. 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 sole issue to be addressed is whether the Petitioner has established that the Beneficiary would 
act in an executive capacity. The Petitioner does not claim that the Beneficiary would be employed 
in a managerial capacity. Therefore, we restrict our analysis to whether the Beneficiary would be 
employed in an executive capacity. 
The statute defines an "executive capacity" as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function of 
the organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in discretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 10l(a)(44)(B) ofthe Act. 
When examining the executive capacity of a given beneficiary, we will review the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are in an executive 
capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of the job duties, we 
examine the company's organizational structure, the duties of a beneficiary's subordinate 
employees, the presence of other employees to relieve a beneficiary from performing operational 
duties, the nature of the business, and any other factors that will contribute to understanding a 
beneficiary's actual duties and role in a business. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business, its staffing levels, and its organizational structure. 
A. Duties / 
Based on the definition of executive capacity, the Petitioner must first show that the Beneficiary will 
perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 
1991) (unpublished table decision). Second, the Petitioner must prove that the Beneficiary will be 
primarily engaged in executive duties, as opposed to ordinary operational activities alongside the 
Petitioner's other employees. See Family Inc. v. USCIS, 469 FJd 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d 1533. · 
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Mauer ofS-D-A-B- LLC 
The Petitioner stated that it operates a retail store opened in 2015 selling "draperies, blinds, and 
fabrics" and also providing installation, interior design consultation, and made-to-measure products. 
The Petitioner indicated that the Beneficiary would be tasked with developing and overseeing "the 
global financial policy," directing "strategic corporate financial planning" and "short and long-term 
financial forecasts." The Petitioner explained that the Beneficiary would "participate in and lead the 
investment decisions of the company" and "oversee accounting promotions, production, and product 
development." It further stated that the Beneficiary was responsible for "overseeing the operations," 
"approving purchase orders," "supervising negotiation with vendors and distributors," and "working 
with the marketing department to oversee planning and execution of marketing and promotions 
initiatives." It stated that the Beneficiary was further tasked with "overseeing product development" 
and "settling customer's financial complaints." It also indicated that the Beneficiary would 
formulate "Human Resources policies and procedures" and oversee "the management and personnel 
structures of the company," including hiring, firing, and performance evaluation. 
The Petitioner stated that the company's employees "are learning the respective pieces of the 
business necessary to perform their duties," indicating that they needed someone with executive 
experience from the foreign employer to provide oversight and strategic direction. The Petitioner 
explained that the Beneficiary would "set high-level goals" for the company, "lead the company 
forward in a strategic manner," and "give unique insight into the systems and processes." The 
Petitioner indicated that the Beneficiary would provide "strategic decision making regarding the 
location, setup, marketing, staffing, and internal policies and procedures" of the U.S.-based store. It 
further noted that the Beneficiary would draft a "5-year business plan," negotiate and contract with 
vendors," and set "high-level policies." On appeal, the Petitioner asserts that it has submitted 
"abundantly detailed" duties specific to the Beneficiary's proposed employment in the United States. 
The Petitioner has not submitted a sufficiently detailed duty description that describes the 
Beneficiary's day-to-day executive-level duties or that credibly establishes that she would devote her 
time primarily to qualifying tasks. 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), a./J'd, 905 F.2d 41 (2d. Cir. 1990). The Beneficiary's 
duty description includes several generic duties that could apply to any executive acting in any 
business or industry and they do not provide insight into the actual nature of her role. The Petitioner 
provided insufficient examples and little supporting documentation to demonstrate the Beneficiary's 
performance of qualifying duties, such financial policies she set, short and long term financial 
forecasts she formulated, accounting procedures she put in place, marketing, production, and product 
development she oversaw, vendors and distributors she negotiated with, human resources policies 
and procedures she put in place, strategic direction she provided, or systems and policies she 
modified. This lack of detail and documentation is particularly noteworthy since the Beneficiary is 
asserted to have previously worked in her proposed executive capacity in the United States from 
August 2015 to March 2017. 
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Matter ofS-D-A-B- LLC 
Further, in the Form I-129, the Petitioner indicates that it only had two employees subordinate to the 
Beneficiary as of the date the petition was filed; as such, it does not appear credible that the 
Beneficiary would devote 35% of her time to formulating human resource policies and procedures. 
Likewise, the Petitioner states that the Beneficiary would spend time "working with the marketing 
department to oversee planning and execution of marketing and promotions initiatives." However, 
submitted organizational charts do not indicate that the Petitioner has a marketing department. The 
Petitioner also submits order forms for print advertising with local publishers, such as one for a six 
month print advertisement. This does not indicate that the Beneficiary is overseeing planning and 
execution within the marketing department, as claimed, but reflects she is performing day-to-day 
operational duties generally related to marketing the company's goods and services. 
In addition, the Petitioner states that the Beneficiary will focus on investigating and initiating the 
opening of another store. However, a submitted business plan projects that this will not take place 
for four to five more years. Given this, it appears unlikely that the Beneficiary would devote a 
significant portion of her time to expansion related duties and the Petitioner provides no supporting 
documentation to substantiate these activities. In addition, the Petitioner submitted an email from 
May 2017, dated only approximately two months prior to the petition, indicating her involvement 
with a drape order. Otherwise, the Petitioner provided little evidence substantiating the 
Beneficiary's regular delegation of non-qualifying tasks to her subordinates. In sum, the Petitioner 
has not sufficiently documented that the Beneficiary will be primarily devoted to executive-level 
duties. 
Even though the Beneficiary holds a senior position within the organization, the fact that she 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) of the 
Act. By statute, eligibility for this classification requires that the duties of a position be "primarily" 
executive in nature. Sections IOI(A)(44)(B) of the Act. The Beneficiary may exercise discretion 
over the Petitioner's day-to-day operations and p~ssess the requisite level of authority with respect to 
discretionary decision-making; however, the position descriptions alone are insufficient to establish 
that her actual duties would be primarily executive in nature. 
B. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in 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 I 0 I (a)( 44 )(C) of the Act. 
In support of the petition in July 2017, the Petitioner submitted an organizational chart indicating 
that the company employed two individuals, an assistant general manager 'and an "installer/general 
work" employee. The chart also indicated the Petitioner was "seeking to hire ASAP" another 
"installer/general work" employee, a "salesperson SAH consultant," and a "showroom 
assistant/customer service" employee. Lastly, the organizational chart projected that a technical 
support employee would begin working for the company in August 2018. The Petitioner stated in an 
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Matter ofS-D-A-B- LLC 
accompanying support letter that it employed an assistant general manager, an installer/general 
worker, and a technical support ·employee, but also indicated that it employed only two "full time" 
employees. 
In response to the Director's request for evidence (RFE), the Petitioner submitted an organizational 
chart reflecting that the Beneficiary oversaw an assistant general manager and a different 
installer/general work employee than that listed in the previously provided organizational chart. The 
chart also showed several employees that would soon start employment with the company or that the 
Petitioner projected it would hire further in the future, including another installer/general worker 
beginning employment in September 2017, a· "sales person/shop at home consultant" starting 
employment in August 2017, a technical support employee beginning employment in October 2017, 
and a showroom assistant/customer service representative. On appeal, the Petitioner contends that it 
has sufficient employees subordinate to the Beneficiary to support her in an executive capacity, 
including a subordinate manager and two operational employees. 
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. § I 03 .2(b )(I). As 
such, the relevant organizational chart to analyze is the one that existed on the date the petition was 
filed. The evidence indicates that the staffing of the Petitioner was not sufficient to support the 
Beneficiary in an executive capacity at the time the petition was filed. As noted, the Petitioner stated 
that it only had two full-time employees, beyond the Beneficiary, at the time the petition was tiled. 
In addition, the Petitioner submitted Florida Employer's Quarterly Reports for the second and third 
quarters of 2017, corresponding with the filing of the petition in July 2017, reflecting that the 
company only had two employees during these quarters. For the third quarter of2017, this included 
the stated assistant general manager and one installer/general work employee. However, the record 
reveals numerous non-qualifying operational duties, including handling installations, interior design 
services, measurements, manufacturing of drapes and blinds, in-house consultations, ordering of 
inventory, delivery, client interviews, cashier duties, sales duties, amongst other operational tasks. It 
appears unlikely that an assistant general manager and one installer/general employee would be 
sufficient to perform this extensive list of operational functions without the Beneficiary's substantial 
involvement. 
Therefore, without clarification and sufficient supporting evidence as to which employees perform 
the numerous non-qualifying operational duties of the business, it appears likely that the Beneficiary 
will be primarily engaged in these duties. Furthermore, the Petitioner's hiring plans projected that it 
would hire several operational employees just after the filing of the petition, including another 
installer/general worker in September 2017, a sales person/shop at home consultant in August 2017, 
and a technical support employee in October 2017. This leaves question as to who was performing 
these non-qualifying installation, sales, and technical support duties when this petition was tiled. 
The Petitioner further provides duties for the Beneficiary's claimed subordinate manager, the 
assistant general manager, indicating that she opens and closes the store, takes all phone calls, 
addresses all customer issues, prepares all in-store paperwork, places all orders, receives all orders, 
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Matter of S-D-A-B- LLC 
follows up with suppliers, books all installations, greets customers in the store, handles all accounts 
payable, amongst other duties. First, it seems unlikely that one employee is performing all of these 
functions without the involvement of the Beneficiary. Second, the assistant general manager is not 
shown to have any subordinates in the provided organizational charts. 
The Petitioner stated in a RFE response letter that the Beneficiary's two subordinates were "still 
learning the business" and it emphasized the Beneficiary's ten years of experience in "designing 
window styles with custom shades and fabrics."· The also record includes significant documentation 
of blog posts and other social media activities specific to the business; however, it is not clear who is 
performing these duties other than the Beneficiary. These social media activities are indicative of 
performance of the function, not setting overall marketing policy, a significant duty asserted for the 
Beneficiary. The Petitioner provided little evidence substantiating that the Beneficiary would be 
primarily delegating non-qualifying duties to her two subordinates. 
As such, the evidence does not indicate that, the Beneficiary will be removed from performing non­
qualifYing operational tasks and that she will primarily spend her time focusing on executive-level 
duties. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in an executive capacity. See, e.g, 
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); Matter of Church Scientology lnt'l, 19 I&N Dec. 593, 604 (Comm'r 
1988). 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 10l(a)(44)(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and they must primarily focus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial 
employee. A beneficiary must also exercise "wide latitude in discretionary decision making" and 
receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." /d. 
The Petitioner has not sufficiently demonstrated that the Beneficiary will have a subordinate level of 
managerial employees to direct, allowing her to primarily focus on the broad goals and policies of 
the organization rather than the day-to-day operations of the enterprise. The evidence indicates that 
the Petitioner will be engaged in a wide range of operational activities for which it appears to not 
have sufficient employees. Likewise, the Petitioner does not clearly and credibly describe and 
document the Beneficiary's proposed day-to-day executive duties and her stated duties do not appear 
credible in light of the company's staffing and level of operations. For these reasons, the Petitioner 
has not established that the Beneficiary will act in an executive capacity. 
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Matter of S-D-A-B- LLC 
III. CONCLUSION 
The appeal must be dismissed because the Petitioner has not established that the Beneficiary will be 
employed in the United States in a managerial or executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-D-A-B- LLC, !D# 1236303 (AAO May 22, 2018) 
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