dismissed L-1A Case: Electronics And Print Products

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-T- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 14, 2020 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a retailer and wholesaler of electronic and print products , seeks to employ the 
Beneficiary temporarily as its vice president under the L-1 A nonimmigrant classification for 
intracompany transferees. Immigration and Nationality Act (the Act) section 101(a)(15)(L), 
8 U.S.C. § 110l(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 on the grounds that the Petitioner 
did not establish, as required, that the Beneficiary has been employed abroad in a managerial or 
executive capacity or that he will be employed in a managerial or executive capacity in the United 
States. 
The matter is now before us on appeal. The Petitioner asserts that the evidence of record, including 
the materials submitted with the appeal, establish that the Beneficiary was employed abroad in an 
executive capacity and will continue to be employed in an executive capacity in the United States, 
thus entitling him to the requested visa classification. The Petitioner does not claim that the 
Beneficiary has been employed or will be employed in a managerial capacity. 
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 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 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 or executive capacity. Id. 
As defined in section IO I (a)( 44 )(B) of the Act, the term "executive capacity" means an assignment 
within an organization in which the employee primarily -
Matter of M-T- Inc. 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
Section 101(a)(44)(C) of the Act further provides, in pertinent part, that: 
If staffing levels are used as a factor in determining whether an individual is acting in 
a[n] ... executive capacity, [U.S. Citizenship and Immigration Services] shall take 
into account the reasonable needs of the organization, component, or function in light 
of the overall purpose and stage of development of the organization, component, or 
function. An individual shall not be considered to be acting in a[ n] . . . executive 
capacity ... merely on the basis of the number of employees that the individual ... 
directs or has directed. 
Based on the statutory definition of executive capacity, the pet1t10ner must first show that the 
beneficiary performs certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). The petitioner must also prove that the 
beneficiary is primarily engaged in 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. 
The petitioner must provide job descriptions that clearly describe the duties performed by the 
beneficiary and indicate whether such duties are in an executive capacity. See 8 C.F.R. 
§ 214.2(1)(3)(ii) and (iv). 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 the business. 
II. EMPLOYMENT ABROAD 
In letters accompanying the petition in 2018 the Petitioner and its foreign affiliate, I I I ~. in I I Venezuela, stated that the Beneficiary has been employed by 
the foreign affiliate since 2009 and from 2014 up to the present has headed its sales, marketing and 
technical services department with a team of six employees. An organizational chart was submitted 
for I I which identified the Beneficiary's position and his subordinate employees, as well as 
14 other employees organized in three other divisions. 
The Petitioner provided few details about the Beneficiary's job duties at I I with its initial 
evidence, simply stating that he is responsible for overseeing his department's sales, marketing, and 
technical services responsibilities in addition to identifying potential expansion opportunities. In a 
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Matter of M-T- Inc. 
request for evidence (RFE) the Director stated that the record was insufficient to establish that the 
Beneficiary was employed by the foreign affiliate in an executive capacity for at least one of the 
three years prior to the filing of the instant petition, and identified the types of documentation that 
should be submitted to overcome this deficiency. In response to the RFE the Petitioner submitted 
some additional evidence relating to the Beneficiary's subordinate employees, but no farther 
evidence about the Beneficiary's own job duties. The Director found that the Petitioner had not 
submitted sufficient evidence to show that the Beneficiary was employed in an executive capacity by 
the foreign affiliate in Venezuela. 
On appeal the Petitioner submits no farther evidence of the Beneficiary's job duties with~I ___ ~ 
but asserts that the evidence of record establishes that the Beneficiary, as director of sales, marketing 
and technical services, influences decision-making at the highest level of the foreign affiliate. 
According to the Petitioner, the Beneficiary's subordinate employees perform some supervisory 
functions as well as sales and technical support duties. The job descriptions submitted in response to 
the RFE cover only four of the six subordinate employees who allegedly work beneath the 
Beneficiary. They include an "engineer" (identified in the original organizational chart as a 
"salesman") who performs day-to-day sales-related activities and reports to the Beneficiary, a 
technical services manager who "is certified in numerous technical service courses for different 
machinery products and printers" and reports to the Beneficiary, and two technicians who provide 
"after sales technical support" and repair services and report to the Beneficiary. The Petitioner 
contends that the Beneficiary's responsibilities primarily involve executive functions, not day-to-day 
sales, marketing, technical support, and other non-executive activities. The Petitioner cites a federal 
court decision that the small size of an organization, while relevant, cannot by itself support a 
finding that an employee is not acting in an executive capacity, and an AAO determination that in 
considering an organization's staffing level the reasonable needs of the organization as a whole must 
be considered. See Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1070 (9th Cir. 2008) 
(quoting Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); and Matter of Leacheng 
International, Inc., 26 I&N Dec. 532, 535 (AAO 2015). 
The Petitioner's claim that the Beneficiary performs primarily executive functions for I I is 
fatally undermined by the fact that it has still not produced a detailed description of the Beneficiary; s 
job duties with the foreign affiliate, as required by 8 C.F.R. § 214.2(1)(3)(ii) and (iv). Without a 
detailed description of the Beneficiary's job duties, including the nature of his interaction with 
subordinate employees in his division of sales, marketing, and technical services and with the board 
of directors above him, we cannot determine whether the Beneficiary's work atl I meets the 
four criteria of executive capacity as defined in section 101(a)(44)(B) of the Act. In particular, 
without a detailed description of the Beneficiary's job duties indicating how he works with 
subordinates the Petitioner has not demonstrated that the Beneficiary either "directs the 
management" or "establishes the goals and policies" of his division, as required by section 
101(a)(44)(B)(i) and (ii) of the Act. Furthermore, without a detailed description of the Beneficiary's 
job duties indicating how he relates to the board of directors (and any other superiors in the 
organization), the Petitioner has not demonstrated that the Beneficiary "exercises wide latitude in 
discretionary decision-making" and "receives only general supervision or direction" from higher-ups 
in the company, as required by section 10l(a)(44)(B)(iii) and (iv) of the Act. 
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Matter of M-T- Inc. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary was 
employed by its foreign affiliate in an executive capacity for one continuous year within three years 
preceding the Beneficiary's application for admission into the United States, as required by Section 
10l(a)(15)(L) of the Act and 8 C.F.R. § 214.2(1)(3)(ii)-(iv). Accordingly, the petition cannot be 
approved. 
III. EMPLOYMENT IN THE UNITED STATES 
In its letter accompanying the petition the position of vice president was summarily described as: 
Assisting President in management of business development and staff Selection and 
supervision of the technical staff and sales staff that enters the company, until this 
staff engages in the company. 
The Beneficiary's specific job duties as vice president were listed as follows: 
• Appraise and evaluate each business opportunity. 
• Determine the best option. 
• Negotiate the purchase price. 
• Direct accountant on due diligence to ensure financial accuracy. 
• Ensure all legalities, licenses, insurance etc. are in place. 
• Establish corporate aims, goals, objectives. 
• Establish corporate customer relations policy. 
• Establish corporate budget for management. 
• Direct the change of management. 
• Review the management staff, procedures and work ethics. 
• Determine changes in policies and procedures to better services and efficiency. 
• Train management personnel in new policies and procedures. 
• Formulate staff meetings to meet and review current staff. 
• Hold staff review discussions with management personnel with view for promotions, 
demotions, additional staff required and dismissals. 
• Complete review of current services and determination of changes and new services to be 
added to improve customer satisfaction. 
• Review of current marketing strategies and assessment of accomplishment. 
• Review of new marketing and advertising media and determination of new approaches. 
• Reporting to the board of directors of foreign affiliate on determinations and suggestions for 
improved future trading. 
The letter also identified additional positions in the United States which the Petitioner intended to 
fill, including a technical service manager, salespersons, technicians and an assistant. Appended to 
the letter was a proposed organizational chart with 15 prospective positions subordinate to the vice 
president. Only two of the positions had the name of the prospective employee. 
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Matter of M-T- Inc. 
In the RFE the Director indicated that additional evidence was needed to show that the Beneficiary 
would be employed in an executive capacity, and identified the types of documentation that should 
be submitted. In particular, the Director requested the submission of: 
• a letter from the Petitioner describing the Beneficiary's typical executive duties, the 
percentage of time spent on each, and how they met the four criteria of "executive 
capacity" as defined in section 101(a)(44)(B) of the Act; 
• an organizational chart or diagram of the Petitioner's organizational structure listing the 
Beneficiary and all employees in his division, department, or team including their names, 
job titles, job duties, educational levels, and salaries; 
• copies of the Petitioner's State Quarterly Wage Reports for the second and third quarters 
of 2018; 
• copies of the Petitioner's payroll summary and federal wage and tax forms showing 
wages paid to all employees under the Beneficiary's direction; and 
• copies of the Petitioner's employment agreements with newly hired employees under the 
Beneficiary's management. 
The Petitioner did not submit any of the requested materials in its response to the RFE. 
In denying the petition the Director found that the job duties listed in the Petitioner's original letter 
did not appear to be primarily executive in nature, but were rather more indicative of an employee 
who would perform the tasks needed to provide a service or produce a product. The Director also 
found that the Petitioner did not appear to have a sufficient organizational structure to support the 
proposed executive position since the record indicated that the U.S. entity at present had no 
employees. 
On appeal the Petitioner objects to the Director's characterization of the vice president's duties as 
not primarily executive in nature. The Petitioner submits a couple of online job search apps from 
ZipRecruiter and America's Job Exchange listing the job duties and responsibilities of vice 
presidents, and asserts that these lists closely correlate with the job duties of the proffered position in 
this petition. The relevance of this evidence in unclear since the Petitioner does not explain how the 
duties and responsibilities of vice presidents as listed in these online job search apps meet the 
statutory criteria of "executive capacity" at section 10l(a)(44)(B) of the Act. 
The Petitioner acknowledges that it has no employees at present, but asserts that it is using the 
human capital of its foreign affiliate to fulfill its work needs until the Beneficiary is transferred to the 
United States, after which it will begin to hire for the job positions on its prospective organizational 
chart. While we can consider the use of employees from a related overseas corporation, see Matter 
of Z-A-, Inc., Adopted Decision 2016-02 (AAO April 14, 2016), the Petitioner must submit evidence 
of their actual employment and provide specific details as to how they support the Beneficiary. It 
has not done so in this case. 
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Matter of M-T- Inc. 
The Petitioner cites several AAO decisions in previous petitions for intracompany transferees in 
which executive or managerial capacity was established for the beneficiary despite the small size of 
the U.S. business. While the Petitioner is correct that its small size is not in itself disqualifying, it 
must still demonstrate that the Beneficiary will in fact be working in an "executive capacity" in the 
United States, as defined in section 10l(a)(44)(B) of the Act. 
The Petitioner must establish its eligibility for the requested immigration benefit at the time the 
petition is filed and throughout the adjudicatory process. See 8.C.F.R. § 103.2(b). Without any 
subordinate employees at the outset of his intended assignment in the United States, it is unclear how 
the Beneficiary could avoid spending the bulk of his time performing the day-to-day operational 
tasks of running an office. Some of the Beneficiary's job duties are so broadly or vaguely described 
that it is difficult to discern exactly what the Beneficiary's role would entail. Others, as discussed by 
the Director in his decision, involve day-to-day business operations that do not involve high-level 
executive functions. Furthermore, the Petitioner has not indicated the percentage of time the 
Beneficiary will spend on each duty, either in its initial letter, or in its subsequent response to the 
RFE, or now on appeal. Therefore, even if some of the duties listed for the Beneficiary may be 
executive in nature, the record does not indicate that the duties will be primarily executive in nature, 
as required to meet the statutory criteria of "executive capacity" in section 10l(a)(44)(B) of the Act. 
It is inherent to the definition of "executive capacity" - the criteria for which include "direct[ing] the 
management of the organization or a major [part thereof]" and "establish[ing its] goals and policies" 
- that the entity must have a subordinate level of employees for a beneficiary to direct and the 
beneficiary must primarily focus on the broader 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 "direct" the enterprise as the owner, co-owner, 
or sole managerial employee. Whether a beneficiary's job meets the definition of "executive 
capacity" turns on whether the Petitioner sustains its burden of proving that the duties are 
"primarily" executive in nature, as set forth in section 10l(a)(44)(B) of the Act. Having broad 
discretionary authority over a petitioner's day-to-day business operations does not infuse a position 
with the definitional elements of "executive capacity." 
For the reasons discussed above, the Petitioner has not established that the Beneficiary will be 
employed in the United States in an executive capacity, as required by Section 101 ( a )(15)(L) of the 
Act and 8 C.F.R. § 214.2(1)(3)(ii). On this ground as well the petition cannot be approved. 
III. CONCLUSION 
The Petitioner has not established that the Beneficiary was employed abroad in an executive capacity 
for one continuous year within three years preceding the Beneficiary's application for admission into 
the United States and that he will be continue to be employed in an executive capacity in the United 
States. 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. 
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Matter of M-T- Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-T-Inc., ID# 6268377 (AAO Jan. 14, 2020) 
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