dismissed L-1A Case: Electronic Payments

U.S. Citizenship 
and Immigration 
Services 
MA TIER OF R-(USA) INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 30,2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an electronic payment systems seller, seeks to temporarily employ the Beneficiary as 
its chief executive officer under the L-1 A nonimmigrant classification for intracompany transferees. 
See Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. ~ 1101(a)(15)(L). The 
L-1 A classification allows a corporation or other legal entity (including its atliliate 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 Vermont Service Center denied the petition, concluding that the Petitioner had not 
established, as required, that the Beneficiary would be employed in an executive capacity for the U.S. 
entity. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary is the senior 
most employee of the company and that he will make decisions and work in an executive capacity as 
defined in the regulations. 1 
Upon de novo review, we will dismiss the appeal. 
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 
knowledge," for one continuous year within three years preceding the beneticiat-y"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 atliliate thereof in a managerial or executive capacity. !d. 
The Act defines the term "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 
1 As the Petitioner does not claim that the Beneficiary will be employed in a managerial capacity. we will restrict our 
analysis to the Beneficiary's claimed executive capacity. 
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Matter of R-(USA) Inc. 
thereof; 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) ofthe Act. 
H. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Petitioner , established in December 2012, markets and sells payment processing products and 
technology developed and produced by its Canadian parent company. The Petitioner states on the 
Form l-129, that it employs two individuals in the United States. In a letter submitted in support of 
the petition, the Petitioner noted that it had signed contracts with advisers in New York to effect a 
initial public offering (IPO) and that it and the parent company had determined "that it is 
in the best interests of the successful completion of the IPO and the gro~th of the 
business for [the Beneficiary] to transfer to the Petitioner." On appeal, the Petitioner submits 
evidence that the Securities and Exchange Commission accepted the foreign entity"s initial public 
offering 
filing on 2017. 
The Director found that the Petitioner had not submitted a detailed description of the Beneticiat-y" s 
proposed duties and had not explained how the Beneficiary would be relieved from performing 
non-qualifying duties. The Director determined that the Petitioner had not established that it will 
employ the Beneficiary in an executive capacity. 
We will address both the Petitioner's description of the Beneficiary 's intended duties as well as the 
Petitioner's staffing to determine whether the Petitioner has established this eligibility requirement. 
We note that when reviewing staffing levels as a factor in determining whether an individual is 
acting in an executive capacity, we 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. Duties 
When examining the executive capacity of a beneficiary , we will look first to a petitioner' s 
description ofthejob duties. See 8 C.F. R. § 214.2(1)(3)(ii). The definition of executive capacity has 
two parts. First, the Petitioner must show that the Beneficiary will perform certain high-level 
responsibilities. Champion World. Inc. v. INS, 940 F.2d 1533 (Table) , 1991 WL 144470 (9th Cir. 
July 30, 1991 ). 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, e.g, Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006): Champion World, 
940 F.2d at 1533. 
On the Form 1-129, the Petitioner stated that the Beneficiary's proposed duties included working 
with advisors to complete the IPO and ramping up the U.S. office to assume greater 
responsibility for management and administration of business and implementation of strateg y to 
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Matter of R-(USA) Inc. 
commence product development in the United States. The Petitioner and the foreign entity, in 
separate letters, stated that "[ s ]ince [the Beneficiary] will continue to serve as Chief Executive 
Officer of the Canadian firm as well as of the US firm, we anticipate that our firm will continue to 
pay this salary until such time as his work with [the Petitioner] begins to absorb sufficient of [sic] his 
time and energy to allow it to assume responsibility for the salary.'' 
In response to the Director's request for evidence, the Petitioner stated that the Beneficiary is to 
"initially work to secure the leases and infrastructure required, hire the management personnel for 
the expansion of the U.S. company following the IPO," and that "[h ]is duties beyond the IPO and 
expansion include the ongoing management and direction for the entire company." The Petitioner 
noted its plans to establish offices, a warehouse and assembly facility, and an R&D facility, and 
listed the Beneficiary's duties after the IPO and expansion as: 
1. Ongoing organization and management of business development (20%) 
2. Management and participation in recruitment and hiring of new employees (20%) 
3. Management of partnership relations with suppliers and vendors (30%) 
4. Management and direction of sales and marketing of the Solo Series products to 
new and existing customers ( 10%) 
5. Management of Performance Reviews carried out on employees and 
sub-contractors ( 5%) 
6. Management of relationship with sub-contractor supplier 
responsible for selling products in the United States (5%) 
7. Day[-]to[-]day management of personnel and implementation of plans for 
continued expansion ( 1 0%) 
The Beneficiary's initial duties, to complete the IPO. to secure leases and infrastructure, 
and to hire management personnel, are not executive duties for the Petitioner as defined by the Act. 
The initial public offering was filed on behalf of the Petitioner's foreign parent company, and thus, 
the Beneficiary's work on the initial public offering was on behalf of the foreign entity. Securing 
leases and infrastructure and hiring management personnel for the Petitioner are operational and 
administrative duties for a start-up company, not one that has been established for several years and 
has been doing business in the United States during that time.2 On appeaL the Petitioner appears to 
acknowledge that the Beneficiary ··carries out operational duties'' and claims that the Beneficiary's 
actions are "strictly because the firm was a start[-]up" and that it is the Beneficiary's nature '"to do 
what needs to be done." 
There are separate eligibility requirements applicable to new offices. The term "new office" refers 
to an organization which has been doing business in the United States for less than one year. 
8 C.F.R. § 214.2(1)(1)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a ·'new office" 
operation no more than one year within the date of approval of the petition to support an executive or 
2 The record includes the Petitioner's lease for a two-person office in New York when the petition was filed, as well as 
invoices from and payments made to the Petitioner for several years. 
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Matter of R-(USA) Inc. 
managerial position. Where, as here, the Petitioner does not meet the definition of a new office, the 
record must establish that the company can support a managerial or executive position as of the date 
the petition is filed. 
The Petitioner also does not indicate how much time the Beneficiary will spend working on behalf of 
the foreign entity and does not detail how his work will impact carrying out duties for the Petitioner. 
The Petitioner seems to acknowledge that the Beneficiary will primarily work on behalf of the 
foreign entity "until such time as his work with [the Petitioner] begins to absorb sufficient of his 
time and energy to allow [the Petitioner] to assume responsibility for the salary." Thus, the 
Petitioner's allocation of the Beneficiary's time, as noted above. includes only some undefined 
portion of the Beneficiary's workload. 
Further, the Petitioner does not sufficiently detail the Beneficiary's tasks so that we may analyze 
whether such duties incorporate managerial, executive, or non-qualifying duties. For example, the 
Beneficiary's responsibility for "[ o ]ngoing organization and management of business development" 
does not convey an understanding of what the Beneficiary will actually be required to do for the 
Petitioner on a daily basis when performing this function. Similarly, ··[ m ]anagement and 
participation in recruitment and hiring of new employees,., and "[ m ]anagement of partnership 
relations with suppliers and vendors" may involve executive or managerial duties, or may involve 
operational tasks necessary to run the company. Reciting the Beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the Beneficiary's daily job duties. The Petitioner has not provided the necessary detail 
or explanation of the Beneficiary's activities in the course of his daily routine. The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co .. Ltd. v. Sava, 724 F. 
Supp.1103, 1108(E.D.N.Y.l989),aff'd,905F.2d41 (2d.Cir.l990). 
On appeal, the Petitioner asserts that the Beneficiary, under his discretionary decision-making 
power, has carried out and will carry out activities on behalf of the Petitioner. Although the 
Petitioner lists several of these activities, such as recruiting and hiring a senior vice-president and 
president, establishing sales and marketing offices in the United States, and establishing and 
operating a warehouse and assembly facility, these duties involve the operational duties necessary to 
expand the Petitioner's business. The Petitioner has not sufficiently explained and supported how 
these duties satisfy the definition of executive capacity. See section 10l(a)(44)(B) of the Act. 
Further, the Petitioner does not include evidence of when the Beneficiary established otlices in the 
United States, if he has done so, and when he will establish a warehouse and assembly facility. It is 
not clear if these items are in the planning stage or are tasks that have already been carried out. 
The fact that the Beneficiary manages or directs a business does not necessarily establish eligibility tor 
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 in nature. Sections 101 (A)( 44 )(B) of the Act. Although the 
Beneficiary may exercise discretion over the Petitioner's day-to-day operations and possess the 
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Matter of R-(USA) Inc. 
requisite level of authority with respect to discretionary decision-making, the position descriptions alone 
are insufficient to establish that his actual duties would be primarily executive in nature. 
B. Staffing 
Beyond the required description of the job duties, we review the totality of the record when 
examining the claimed 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 Petitioner's organizational chart included a senior vice-president of business development and a 
vice-president of business development, as well as 12 sub-contractors, reporting to the Beneficiary. 
Although requested by the Director, the record does not include copies of state quarterly wage 
reports, IRS Forms W-2, or IRS Forms 1099, for the 2016 year. The record includes six IRS Forms 
1099 for 2015 issued to individuals, two of whom are identified on the Petitioner's organizational 
chart as subcontractors. However, 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 )(I). As this petition was filed in December 2016, the pertinent 
wage records would fall within the 2016 year and most relevant, the fourth quarter of that year. The 
Petitioner has not provided evidence in support of its claim that it employed two individuals and 12 
subcontractors when the petition was filed. 
The record does include a partial copy of the foreign entity's agreement with for the 
purchase of products for resale to end-users when integrated with the foreign entity's proprietary 
original equipment manufacturer solutions, which is dated August 2011. The record further includes 
a copy of an independent sales contractor agreement between the Petitioner and 
, as well as several "Tri-Party Referral Partner Agreement[s]" which identified 
the Petitioner, and different third parties as signatories for each 
agreement.j Two of the signatories to the tri-party referral partner agreements are depicted on the 
Petitioner's organizational chart as the senior vice-president business development and the 
vice-president of business development. The Petitioner, however, does not advise on when these 
individuals were hired to fill these positions. Although the documents submitted show that the 
Petitioner has been doing business, these documents are insufficient to establish that the Petitioner 
employed or employs individuals to carry out the operational and administrative tasks to develop the 
Petitioner's business, to recruit and hire new employees, to perform the supervisory tasks related to 
suppliers and vendors, and to perform the managerial duties related to sales and marketing of the 
Petitioner and its foreign parent's products. The Petitioner has not provided evidence establishing 
3 The tri-party agreement referred to the Petitioner as an entity with an independent sales contractor agreement with 
_ and noted that the referral partner[ s] entered the agreement to refer merchants who use electronic payment 
processing services to the Petitioner. The 17 tri-party agreements are dated beginning in 2013 ( 4 ), and continuing 
through 2014 (2), 2015 (7), 2016 (3), and one that is undated. 
Matter of R-(USA) Inc. 
that it employs personnel who will relieve the Beneficiary from performing the non-qualifying 
operational and administrative tasks. 
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. Here, the Petitioner has not established that the Beneficiary 
has a subordinate level of managerial employees to direct, or sufficient staff to relieve him from 
significant involvement in the day-to-day operations of the company. 
As required by section 101(a)(44)(C) ofthe Act, if staffing levels are used as a factor in determining 
whether an individual is acting in an executive capacity, we must take into account the reasonable 
needs of the organization, in light of the overall purpose and stage of development of the 
organization. The Petitioner markets and sells processing products and technology developed and 
produced by its Canadian parent company and has been operating since 2013. Although the 
Petitioner's organizational chart lists two individuals and 12 subcontractors reporting to the 
Beneficiary, the record does not include evidence that these individuals were employed or were 
receiving compensation for contracted services when the petition was tiled. The record also does not 
include evidence that these individuals relieve the Beneficiary from performing the actual 
day-to-day, non-executive operations of the company. Moreover, the Petitioner has not provided 
evidence that the foreign entity's staff will perform the marketing and sales tasks necessary to serve 
the Petitioner's operations and to support the organization as a whole. 
The Petitioner has not established that the Beneficiary will be employed in an executive capacity. 
III. CONCLUSION 
The appeal will be dismissed because the Petitioner has not established that the Beneficiary will be 
employed in the United States in an executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of R-(USA). Inc., ID# 670226 (AAO Oct. 30, 2017)