dismissed L-1A Case: E-Cigarette Business

U.S. Citizenship 
and Immigration 
Services 
In Re: 12890108 
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, an "E-cigarette and Business" company, seeks to continue the Beneficiary's temporary 
employment as its president under the L-lA nonimmigrant classification for intracompany 
transferees.1 See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. 
§ 1101(a)(15)(L). The L-lA classification allows a corporation or other legal entity (including its 
affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to work 
temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that the Beneficiary would be employed in the United States 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, 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). The prospective U.S. 
employer must also be a qualifying organization that seeks to employ a beneficiary in a managerial or 
executive capacity. 8 C.F.R. § 214.2(1)(3)(i). 
A petitioner seeking to extend an L-lA petition that involved a new office must submit a statement of 
the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
December 11, 2018, until December 10, 2019. A "new office" is an organization that has been doing business in the 
United States through a parent, branch, affiliate, or subsidiary for less than one year. 8 C.F.R. § 214.2(I)(1)(ii)(F). The 
regulation at 8 C.F.R. § 214.2(I)(3)(v)(C) allows a "new office" operation one year within the date of approval of the 
petition to support an executive or managerial position. 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 8 C.F.R. 
§ 214.2(1)(14)(ii). 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The issue to be addressed is whether the Petitioner provided sufficient evidence establishing that the 
Beneficiary's position with the U.S. entity would be in a managerial or executive capacity. 
When examining the managerial or executive capacity of a given beneficiary, we 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 a 
managerial or executive capacity. See 8 C.F.R. § 214.2(1)(3)(ii). Beyond the required description of 
the job duties, we examine the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneficiary from performing 
operational duties, the nature of the business, 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. Managerial Capacity 
First, we will address whether the Beneficiary's proposed employment under an extended petition 
meets the statutory definition of managerial capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44)(A) of the Act. 
1. Factual Background 
The petition form indicates that at the time of filing the Petitioner claimed six employees and a gross 
annual income of $254,732. In a supporting statement, the Petitioner offered a job duty breakdown 
indicating that the Beneficiary will have broad discretionary authority over the company's finances, 
plans and objectives, growth strategies, and a management staff consisting of a sales manager, an 
internet promotion manager, a service manager, and an office manager. The Petitioner stated that the 
Beneficiary will make adjustments to its products and strategies in accordance with "local policies" 
and operations of other e-cigarette vendors. The Petitioner explained that "the right General Manager" 
had not yet been hired at the time of filing and that the Beneficiary would therefore "shoulder[] the 
responsibility" until "the right person" is hired to fill the general manager position. The Petitioner 
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also provided its organizational chart listing eight positions of which two - an "office manager & 
bookkeeper" and a "web site designer" - were indicated as vacant. The organizational chart shows the 
Beneficiary at the top of the hierarchy overseeing a sales manager, a service manager, an internet 
promotion manager, and the vacant "office manager & bookkeeper" position. The sales manager is 
depicted with two subordinates - a sales assistant and a warehouse assistant - and the internet 
promotion manager is depicted as overseeing the vacant website designer position. In addition, the 
Petitioner provided quarterly wage reports for the first three quarters of 2019. The quarterly wage 
report for the third quarter lists six employees, showing that full-time wages were paid to the 
Beneficiary, the sales manager, the sales assistant, and one other employee whose name does not 
appear on the organizational chart. Two other employees, including the service and internet promotion 
managers, were compensated wages that are commensurate with part-time employment and the 
individual named on the organizational chart as the warehouse assistant was not included in that 
quarterly wage report. 
The Director issued an RFE instructing the Petitioner to clearly identify the Beneficiary's proposed 
position as either managerial or executive. The Petitioner acknowledged the Petitioner's claim, that 
the Beneficiary would "shoulder[] the responsi bi I ity" for the lack of a general manager, instructing the 
Petitioner to clarify how the Beneficiary planned to compensate for this position vacancy. The 
Director also instructed the Petitioner to provide an organizational chart showing its organizational 
structure and staffing levels and to provide detailed job descriptions separately listing the job duties 
the Beneficiary performed during the previous year and those he would perform under an approved 
petition. The Director asked the Petitioner to disclose the percentage of time the Beneficiary would 
allocate to each listed job duty and to provide performance reviews completed by the Beneficiary for 
subordinate employees, if claiming that the proposed employment will be in a managerial capacity. 
In response, the Petitioner provided a statement from the Petitioner's counsel and a statement signed 
by the Beneficiary in his capacity as the Petitioner's president. In the former statement, counsel 
reiterated the original claim that the Beneficiary would be employed in a managerial capacity and 
stated that the Beneficiary would oversee subordinates who are "professionals with supervisory 
duties" and who would relieve the Beneficiary from having to perform non-managerial job duties. In 
the latter statement, Petitioner claimed that the Beneficiary "has been concurrently undertaking some 
managerial work from December 2019 to April 2020," but that the Beneficiary's position is 
nevertheless "executive in nature." The Petitioner restated the original job duty breakdown and 
elaborated on each of seven job duties, adding a percentage and hourly breakdown to those duties in 
compliance with RFE instructions. The Petitioner stated that the Beneficiary "has been and will 
continue to perform" the listed job duties, which include the following: 
I Developing and updating the business plan; 
I Conducting "abundant research regarding new market potential"; 
I Recruiting employees to fill the positions of sales and marketing manager, service manager, 
and internet promotion manager; 
I "[C]ultivat[ing]" an existing employee to fill the position of general manager; 
I Pproviding "orientation and substantial training to new employees"; 
I Approving and denying leave requests; and 
I "[D]irecting" a sales manager, an internet promotion manager, a service manager, and an office 
manager. 
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The Petitioner also provided an employee chart, which named eight employees, including the 
Beneficiary, and included employee position titles, salaries, and education levels. The Petitioner 
explained that even though it hired seven "temporary workers" subsequent to the approval of the prior 
L-lA petition, "all temporary workers were temporarily dismissed" as a result of the "work stoppage 
caused by the Covid-19 virus." The Petitioner also provided employee leave requests containing the 
Beneficiary's signature, employment agreements for a sales and marketing manager, a purchasing 
manager, a service manager, and general manager, and meeting notes that described the subject matter 
and listed attendees of meetings that were claimed to be held between January 2019 and April 2020. 
After reviewing the evidence, the Director denied the petition, finding that the Petitioner did not 
adequately explain why the Beneficiary's duties under an extended petition would be the same as the 
duties he performed during the Petitioner's first year of operation, when it was a new office. The 
Director also discussed the Petitioner's staffing composition, questioning whether it had reached a 
level of development that would enable it to support a managerial or executive position and pointing 
to the lack of evidence showing that the Petitioner hired a warehouse assistant and the lack of clarity 
as to which of its employees were deemed "temporary workers" and the duties they performed. 
Regarding evidence of changes that the Petitioner claims took place after the petition was filed, the 
Director noted that eligibility must be determined based on facts and circumstances that existed at the 
time of filing and that evidence of changes that may have taken place after this petition was filed are 
not relevant. 
On appeal, the Petitioner asserts that "the Beneficiary has been and will be relieved from perform [sic] 
non-qualifying day-to-day jobs by her subordinates, that she is primarily engaged in managerial 
duties" and further notes that "she receives the highest salary compared with the rest of [the] 
employees"2 and exercises authority directly over a general manager and indirectly over three 
department managers. 
2. Analysis 
As a preliminary matter, we note that the assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 l&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter of Ramirez-Sanchez, 17 l&N Dec. 
503, 506 {BIA 1980)). Counsel's statements must be substantiated in the record with independent 
evidence, which may include affidavits and declarations. We further note that a petitioner claiming 
that a beneficiary will perform as a "hybrid" manager/executive will not meet its burden of proof 
unless it has demonstrated that the beneficiary will primarily engage in either managerial or executive 
capacity duties. See section 101(a)(44)(A)-(B) of the Act. While in some instances there may be 
duties that could qualify as both managerial and executive in nature, it is the petitioner's burden to 
establish that the beneficiary's duties meet each set of criteria set forth in the statutory definition for 
either managerial or executive capacity. A petition may not be approved if the evidence of record 
does not establish that the beneficiary will be primarily employed in either a managerial or executive 
capacity. In the present matter, the Petitioner does not clarify whether the Beneficiary wi 11 be primarily 
engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties 
under section 101(a)(44)(B) of the Act. As indicated earlier, the Petitioner makes inconsistent claims 
2 We note for the record that the Beneficiary in this matter is male. 
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on this issue by first claiming that the Beneficiary will be employed in a managerial capacity, then 
claiming executive capacity in response to the RFE, and reverting to the original claim on appeal. In 
the matter of any claim, however, the Petitioner must support its assertions with relevant, probative, 
and credible evidence. See Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010). In addition, the 
Petitioner's claim that the Beneficiary "has been and will continue to perform" the same list of job 
duties indicates that there would be no distinction between the job duties the Beneficiary performed 
during the Petitioner's new office phase of operation and those he would perform under an approved 
petition. This lack of a distinction leads us to question how or whether the Petitioner progressed 
beyond the new office phase of operation during which the Beneficiary is expected to focus on 
primarily managerial or executive job duties. An employee who "primarily" performs the tasks 
necessary to produce a product or to provide services for an entity that is not a new office is not 
considered to be "primarily" employed in a managerial or 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'I, 19 l&N Dec. 593, 604 (Comm'r 1988). 
Further, although the Petitioner focuses on the Beneficiary's top placement with the U.S. organization 
and his authority over "management staff," it does not clarify whom it deemed as its "temporary 
workers" or how the absence of those workers will affect the Petitioner's operation and its ability to 
support the Beneficiary in a managerial capacity. Although the Petitioner claims that it hired a general 
manager since the filing of this petition, 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)(1). Because the Petitioner did not employ a general manager at the 
time this petition was filed, we will not consider this new information when making an eligibility 
determination. Instead, we will focus on evidence that is relevant to the Petitioner's circumstances at 
the time of filing. Here, the record contains conflicting evidence as to whom the Petitioner employed 
at the time of filing and the positions those employees occupied. 
As noted earlier, the Petitioner offered several employment agreements in response to the RFE. 
According to one such agreement,! lwas offered employment as the Petitioner's "sales and 
marketing manager" in January 2019. I Is employment agreement indicates that this 
individual was offered the same position in September 2019, three months prior to the date this petition 
was filed. However, the organizational chart provided at the time of filing does not include a "sales 
and marketing manager" position and further shows that I I and I I held separate 
positions as sales manager and internet promotion manager, respectively. 3 Given that the Petitioner 
provided a promotion letter and corresponding employment agreement stating that..,._ __ ____., 
not promoted to the position of general manager until April 2020, it is unclear why~-~-~~ 
offered I ~s position of sales and marketing manager in September 2019, a position~---­
□ presumably held until being purportedly promoted to another position. 
Further, althougrl l's employment agreement indicates that this individual was offered 
the position of purchasing manager in June 2019, the Petitioner's organizational chart did not list a 
purchasing manager position as part of its organizational hierarchy. Moreover, it is unclear why 
I lwas listed as a participant in an April 2019 meeting if, as stated in the employment 
3 The position of "office manager & bookkeeper" was also depicted as the Beneficiary's direct subordinate, but was shown 
to be vacant at the time of filing. 
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contract, this individual was not hired until June 2019, two months after the alleged meeting took 
purportedly took place. The Petitioner provided no evidence showing that it employed I I 
in any capacity in April 2019 or that a purchasing manager position was part of its organizational 
hierarchy at the time this position was filed. We also noted that although the previously mentioned 
employee chart indicates that a bonus or commission will be paid to each employee in addition to their 
base salary, this compensation structure was not corroborated in any of the submitted employment 
agreements, which listed only monthly salaries and made no mention of additional compensation. 
The Petitioner must resolve the inconsistencies described above with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). Unresolved 
material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence 
submitted in support of the requested immigration benefit. Id. 
Lastly, we note that none of the Petitioner's meeting notes, the earliest of which date back to January 
2019, specifically listl I the Beneficiary, as a meeting participant. Rather, the notes list 
I las a participant in each meeting. The Petitioner has not acknowledged this anomaly or 
provided evidence establishing that I land the Beneficiary are the same individual. This 
anomaly, along with the various other irregularities, must be resolved through the submission of 
independent, objective evidence. Id. 
By providing evidence containing the deficiencies and anomalies catalogued above, the Petitioner has 
undermined its credibility, thereby also detracting from the reliability of its claim that the Beneficiary 
would be employed in a managerial capacity. 
B. Executive Capacity 
We will also address the new claim the Petitioner made in its RFE response statement, where it stated 
that although the Beneficiary "has been concurrently undertraining some managerial work," his 
employment is "executive 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. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of an organization or major component or function thereof. Section 101(a)(44)(B) 
of the Act. To show that a beneficiary will "direct the management" of an organization or a major 
component or function of that organization, a petitioner must show how the organization, major 
component, or function is managed and demonstrate that the beneficiary primarily focuses on its broad 
goals and policies, rather than the day-to-day operations of such. An individual will not be deemed 
an executive under the statute simply because they have an executive title or because they "direct" the 
organization, major component, or function as the owner or sole managerial employee. A beneficiary 
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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." Id. 
Given the claim that the Beneficiary planned to "concurrently" perform managerial and executive job 
duties at the time of filing, it appears that the proposed employment would not be primarily "executive 
in nature" as claimed, but rather that it would be a "hybrid" manager/executive position. However, as 
discussed above, the Petitioner will not meet its burden of proof unless it has demonstrated that the 
beneficiary will primarily engage in either managerial or executive capacity duties. See section 
101(a)(44)(A)-(B) of the Act. 
Further, the fact that the Beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity within 
the meaning of section 101(a)(44) of the Act. By statute, eligibility for this classification requires that 
the duties of a position be "primarily" executive or managerial in nature. Sections 101(A)(44)(A) and 
(B) of the Act. While 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, 
his actual duties may not be primarily executive in nature. Because of the evidentiary deficiencies 
described in this decision, the Petitioner has not demonstrated that it was adequately staffed and able 
to relieve the Beneficiary from having to carry out primarily non-executive job duties at the time of 
filing. As such, we cannot conclude that the Beneficiary would primarily "direct the management" 
and "establish the goals and policies" of the U.S. entity. 
In light of the above, the Petitioner has not established that the Beneficiary would be employed in a 
managerial or executive capacity under an extended petition. 
ORDER: The appeal is dismissed. 
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