dismissed L-1A Case: E-Commerce

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-V- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 11, 2019 
APPEAL OF CALIFORNIA SER VICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an e-commerce vendor, 1 seeks to continue the Beneficiary's temporary employment as 
its president under the L-lA nonimmigrant classification for intracompany transferees. See Immigration 
and Nationality Act (the Act) Section 10l(a)(l5)(L), 8 U.S.C. § l 10l(a)(l5)(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 a managerial or executive 
capacity under the extended petition. 
On appeal, the Petitioner disputes the denial and re-submits documents in support of its claim that the 
Beneficiary will be employed in a managerial and executive capacity. 
Upon de nova review, we find that the petitioner has not overcome the basis for denial. Therefore, 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 capacity that is managerial, executive, or involves specialized 
knowledge," for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. Section 10l(a)(l5)(L) of the Act. In addition, the beneficiary must 
seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. 
1 Although the Petitioner indicates that it purchased for the purpose of operating a food truck, 
the latter appears to be part of a separate business entity, which is not a party to this petition. Therefore, despite indicating 
that the Petitioner owns this business relationship is not relevant in the instant matter, where only the 
Beneficiary 's proposed employment with the petitioning entity will be addressed. 
Matter ofM-V- Corp. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The only issue to be addressed is whether the Petitioner established that the Beneficiary will be 
employed in a managerial or executive capacity under the extended petition. The Petitioner initially 
claimed that the Beneficiary would be employed in a managerial capacity. 2 However, on appeal, the 
Petitioner claims that the Beneficiary's proposed employment fits the criteria of both managerial and 
executive capacity. Therefore, we will address both of these claims in the analysis below. 
A Managerial Capacity 
First we will discuss whether the Petitioner has provided sufficient evidence to establish that the 
Beneficiary will be employed in a 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 
10l(a)(44)(A) of the Act. 
Based on the definition of managerial 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 managerial 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 must provide a job description that clearly describes the duties to be performed by the 
Beneficiary and indicate whether such duties are in a managerial 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 the Beneficiary's subordinate employees, the presence of other 
employees to relieve the Beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding the 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. 
2 Although the Petitioner did not expressly identify the Beneficiary's employment as being in a "managerial capacity," it 
used language from the statutory definition of managerial capacity to describe the Beneficiary's proposed position, stating 
that the Beneficiary would have the authority to "control the work of other supervisory/professional employees," hire and 
fire employees and take "other personnel actions," and "exercise [] discretionary authority over day-to-day operations." 
Section 10l(a)(44)(A)(2)-(4) of the Act. 
2 
Matter ofM-V- Corp. 
1. Duties 
First, we will discuss the duties to be performed by the Beneficiary. We note that the actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
In a supporting cover letter, the Petitioner stated that since its inception in 2015 it has continued to 
develop and implement an e-commerce platform, which it used to build relationships with suppliers 
and clients for the purpose of selling products and services "through virtual and direct shopping." The 
Petitioner stated that as a result of the "managerial experience" gained during her course of 
employment with the foreign parent entity, the Beneficiary is an ideal candidate to oversee the 
Petitioner's e-commerce operation in the United States. The Petitioner did not, however, explain how 
the Beneficiary's former employment within the context of a medical laboratory - which focused on 
"assisting the treating physician and patient with reliable technical support in the evaluation, diagnosis, 
and prognosis during the process of a disease or its absence" - equipped her with the necessary 
knowledge and experience to start and lead an e-commerce operation. 
The Petitioner provided a broadly stated job description that did not include a detailed list of the 
Beneficiary's daily activities within the Petitioner's business scheme. Rather, the Petitioner stated 
that the Beneficiary's position would include the following: conferring with staff and the board of 
directors, representing the company in all official business matters and ensuring adherence to local 
and state laws, engaging in contract negotiations with suppliers and contractors, coordinating budget 
and finances, formulating and implementing goals and policies and evaluating the staffs performance 
in successfully meeting those goals, reviewing the marketing strategy, coordinating departmental 
activities in terms of pricing, sales, and distribution logistics, reviewing inventory reports and 
restocking orders, overseeing the quality of goods, selecting "managers or other high-level staff," and 
ensuring proper operation of data systems and equipment. 
In a request for evidence (RFE) the Director acknowledged the Petitioner's submission of the above 
list of duties, but determined that the list did not establish that the Beneficiary would primarily oversee 
supervisory or professional employees or describe how she would implement the policies of the 
organization. Accordingly, the Director asked for a more detailed job description delineating specific 
managerial job duties and the time she would allocate to each individual duty. 
In response, the Petitioner provided a document titled "Functions of [the Beneficiary]," which 
indicated that the Beneficiary would oversee the following list of activities: "General Managing, 
Logistics, Marketing/Sales, Financial and Market Studies, Administration, Investigation and 
Developing, External Consulters (Accounting, Software, E-marketing, Hardware, Labor.)" The 
Petitioner discussed the Beneficiary's roles during its initial "Phase of Constitution," which preceded 
the current "Commercial Phase." The Petitioner stated that during this later phase the Beneficiary 
would allocate 75% of her time to "Corporative Leadership," which would involve five activities: 
(1) leading "the development and adjustments of the Vision and execution of the politics [sic] and 
procedures"; (2) reviewing and updating "the Business Model"; (3) creating strategies "around 
commercializing products and services"; (4) making "[h]igh level" policy and strategy decisions; 
(5) and "[r]eviewing and actualizing the politicies [sic] and strategies." The Petitioner also provided 
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Matter ofM-V- Corp. 
a pie chart showing that 55%, rather than 75%, of the Beneficiary's time would be allocated to 
"Corporative Leadership" activities. The Petitioner must resolve this inconsistency in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). The pie chart indicates that 45% of the Beneficiary's time would be allocated to 
"Others," which is comprised of three categories - "Follow Up and Control of the Strategic Activities," 
"Strategic Human Capital Managing," and "Following and Control of the Functional Activities." 
The Petitioner did not comply with the Director's RFE instructions, which asked that each managerial 
job duty be assigned its own percentage of time. Instead, the Petitioner grouped multiple activities 
into each of the four categories listed above and created a pie chart containing an inconsistent 
percentage breakdown. Alongside the pie chart, the Petitioner provided additional information stating 
that the Beneficiary's daily activities "are effectively aligning with our mission" and that "the 
company['s] president is actively engaged in revamping the approach to e[-]commerce between the 
U[.]S[.] and Latin American countries." The Petitioner did not list the duties that are involved in 
"revamping" the e-commerce approach or state which of the Beneficiary's daily actions further its 
"mission" within the scope of an e-commerce operation. The Petitioner also pointed to the 
Beneficiary's objective to "develop a new Business Model" to include "develop[ing] and 
commercializing of products of their own, unique, innovating oriented to strictly felt necessities"; it 
did not, however, explain the significance and application of this information with respect to the 
Beneficiary's role and duties within the petitioning organization. Similarly, the Petitioner's claim that 
the Beneficiary "is intensely working" on a strategy "to insert [the Petitioner] into the Amazon 
platform with conventional stores [sic] products" does not explain what actions the Beneficiary 
executes daily or weekly to meet this business goal. 
Further, although the discussion of "Corporative Leadership" segued into a discussion of the 
Petitioner's involvement in a food trucking operation, this information pertains to the activities of a 
separate entity and is therefore not relevant for the purpose of establishing the Beneficiary's 
prospective employment in a managerial capacity with respect to the petitioning entity. As such, any 
job duties the Beneficiary has or would perform in furthering the business goals of the food trucking 
operation, or any business endeavor that is not directly part of the petitioning organization, are outside 
the scope of this petition and will not be considered. 
In the denial decision, the Director noted that the original job description, which was submitted 
initially in support of the petition, is different from the job description that was submitted later in 
response to the RFE. The Director also determined that the Petitioner did not establish that the 
Beneficiary would primarily oversee supervisory or professional employees or provide sufficient 
supporting evidence of the Beneficiary's policy-making role. 
On appeal, the Petitioner argues that the Director failed to consider previously submitted evidence and 
contends that it provided a detailed description of the Beneficiary's proposed job duties. The Petitioner 
points to the Beneficiary's hiring and firing authority describing instances where she exercised that 
authority based on knowledge she gained from reviewing quality control reports. The Petitioner also 
emphasizes the Beneficiary's senior position within its organizational hierarchy noting that such 
placement gives her discretionary authority over the company's finances and contract negotiations and 
4 
Matter ofM-V- Corp. 
allows her to evaluate whether "the company 1s taking the correct path" and to make changes 
accordingly. 
We find, however, that the Petitioner offered vague job descriptions that did not adequately convey 
what the Beneficiary would be doing on a daily basis within the context of an e-commerce business. 
Despite the inconsistency in the percentage breakdown concerning "Corporative Leadership" 
category, the Petitioner seemingly indicated that the Beneficiary would allocate the majority of her 
time to activities within this category. The Petitioner did not, however, provide a detailed description 
of the actions the Beneficiary would carry out with respect to "Corporative Leadership." Instead, the 
Petitioner listed five broadly stated and somewhat overlapping job responsibilities that convey a strong 
sense of the Beneficiary's high level of discretionary authority, but do clarify her actual role in thee­
commerce business or specify the activities she executes on a daily or weekly basis to meet the 
organization's business goals. 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 ofreiterating the regulations. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. at 1108. 
The fact that the Beneficiary will manage a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial capacity within the meaning of section 
10l(a)(44)(A) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" managerial in nature. Section 10l(A)(44)(A) 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, the broadly stated position 
descriptions that the Petitioner provided are insufficient to establish that the Beneficiary's actual duties 
would be primarily managerial in nature. 
In light of the deficiencies discussed above, we find that the Petitioner has not adequately described 
the Beneficiary's proposed job duties and therefore has not established that the Beneficiary would 
spend her time primarily performing duties of a managerial nature. 
2. Staffing 
Next, we will address the Petitioner's staffing and organizational hierarchy and the Beneficiary's 
position within that hierarchy. If staffing levels are used as a factor in determining whether an 
individual is acting in a managerial capacity, we take into account the reasonable needs of the 
organization, in light of its overall purpose and stage of development. See section 10l(a)(44)(C) of 
the Act. 
In the petition form, the Petitioner claimed six employees at the time of filing. Although the Petitioner 
provided payroll registers and state quarterly wage reports for 2017, showing that it had five employees 
5 
Matter ofM-V- Corp. 
in December 2017, it did not provide an organizational chart illustrating the organization's staffing 
hierarchy. 
In the RFE, the Director instructed the Petitioner to provide an organizational chart describing its 
staffing levels and the Beneficiary's position with respect to her subordinates, as well as evidence of 
educational levels and employee wages. 
In response, the Petitioner provided an organizational chart depicting the Beneficiary as the 
"president/general manager" of the organization, subject to a three-person board of directors where 
the Beneficiary is one of the board members. The chart shows that in her capacity as 
"president/general manager," the Beneficiary oversees the company's four "external consultants" - an 
accountant, a software developer, an e-marketing company, and "quality developers" - along with five 
direct company employees, including an administrative assistant, a "logistic" employee, a "logistic 
assistant," a marketing and sales employee, and the director of research and development. 
Although the Petitioner provided brief job descriptions and listed monthly salaries for the positions in 
the chart, it did not provide supporting evidence showing that the employees and "external 
consultants" named in the chart actually worked for, or provided services to, the Petitioner at the time 
this petition was filed. The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). Without such evidence we 
are unable to determine that at the time of filing the Petitioner's e-commerce business was adequately 
staffed to support the Beneficiary in a managerial capacity and to relieve her from having to allocate 
her time to primarily non-managerial job duties. 
B. Executive Capacity 
On appeal, the Petitioner claims that the Beneficiary's proposed employment also fits the definition 
of executive capacity. 
"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 10l(a)(44)(B) of the 
Act. 
Although the Petitioner claims that the Beneficiary has been assigned managerial and executive job 
duties "since the beginning," it did not originally claim that the Beneficiary would be employed in an 
executive capacity and only made this claim recently, on appeal. In support of this claim, the Petitioner 
again focuses on the Beneficiary's discretionary authority in making business decisions and points to 
the previously submitted job description; as noted here, however, the earlier job description focused 
on the claim that the Beneficiary would be employed in a managerial capacity and did not indicate 
that the same employment meets the statutory elements of executive capacity. Regardless, in light of 
the previous discussion, which addressed the Beneficiary's deficient job descriptions and lack of 
sufficient supporting evidence showing whom the Petitioner employed at the time of filing, we find 
Matter ofM-V- Corp. 
that the Petitioner has not established that at the time of filing it was able to employ the Beneficiary in 
an executive capacity where she would primarily direct the management of the organization and focus 
on its goals and policies. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofM-V-Corp., ID# 2688039 (AAO Apr. 11, 2019)