dismissed L-1A Case: Eyeglasses Manufacturing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-E-V-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 30. 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129. PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. a three-employee manufacturer and retailer of eyeglasses. 1 seeks to temporarily 
employ the Beneficiary as its chief executive otticer under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 10l(a)(15)(L). 
8U.S.C. § 110l(a)(15)(L). The L-lA classitication 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 ofthe California Service Center denied the petition. concluding that the record did not 
establish, as required, that the Beneficiary would be employed in the United States in a managerial 
or executive capacity under the petition. 2 
On appeal, the Petitioner asserts that the Beneficiary will perform duties in an executive capacity and 
will not be engaged in day-to-day manufacturing or sales duties. 3 
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 beneficiary"s application for 
admission into the United States. Section 101(a)(15)(L) of the Act. In addition. the beneficiary 
1 
The California government website indicates that the Petitioner is "FTB SUSPENDED." ,)'ee 
https://businesssearch.sos.ca.gov (last visited Nov. 8, 20 17). In any future filings. the Petitioner must provide evidence 
establishing that it is active and operating in California. 
2 The Petitioner asserts that this is an extension of a petition approved in November 20 I 0 with a validity period fi·om 
November 4. 20 I 0. to November 3. 20 II. However. "a petition extension may be filed only if the validity of the original 
petition has not expired." 8 C.F.R. § 214.2(1)(14). The petition in this matter was tiled on February 8, 2017. 
Accordingly, this is not a petition extension. 
3 As the Petitioner does not claim that the Beneficiary will perform duties in a managerial capacity. we will restrict our 
analysis to the Beneficiary"s claimed executive capacity. 
Matter (~f A-E- V-, Inc. 
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. !d. 
An individual L-1A petition filed on Form I-129, Petition for a Nonimmigrant Worker. must include 
evidence that the petitioner will employ the beneficiary in a managerial or executive capacity. 
including a detailed description ofthe services to be performed. 8 C.F.R. § 214.2(1)(3)(ii). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Petitioner was incorporated in June 20 I 0 to support the petitioning organization's website and to 
process orders of eyeglasses manufactured by the foreign entity. In late 2016. the foreign entity 
determined that the U.S. office should expand by setting up a complete optical laboratory and 
assigned the Beneficiary to execute the expansion plan. 
The Director determined that the Beneficiary's intended duties are not consistent with duties 
typically performed by a manager or executive and that the Petitioner's organizational structure 
showed the Beneficiary would be assisting with the Petitioner's day-to-day non-supervisory duties. 
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 
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. 
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 a managerial or 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. S'ee 
section 10l(a)(44)(C) of the Act. 
A. Duties 
When examining the executive capacity of a beneficiary, we will look tirst 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. 
2 
Matter of A-E-V-, Inc. 
On the Form 1-129, the Petitioner stated that the Beneficiary will spend: 25 percent of his time on 
management duties. including hiring. firing. and managing stan: and managing inventory of frames 
and lenses; 35 percent of his time on product diversification and opening new accounts with major 
optical brands; and 40 percent of his time setting up the lab and expanding the Petitioner by 
implementing the business plan. including selecting and purchasing commercial property and fixed 
assets. In a separate document, the Petitioner noted that when the Beneficiary's immigration petition 
is approved, he will be responsible for "top management duties e.g. hiring. development. planning 
and implementation.'' 
In response to the Director's request for evidence (RFE). the Petitioner repeated this allocation of the 
Beneficiary's duties and provided examples of the Beneficiary's intended duties. 
On appeal, the Petitioner states that the Beneficiary .. will direct, not only the expansion of this new 
business component, but all business operations while he is within the US." The Petitioner adds that 
this duty will involve: 25 percent of his time selecting a location and entering into a long-term lease 
agreement or purchasing a location and selecting the appropriate financing; and 20 percent of his 
time selecting the most cost efficient equipment and software for the lab, overseeing the installation 
of these fixtures. choosing the employees or consultants to set up and calibrate the equipment and 
computers, and then hiring and training employees to perform the manufacturing. The Petitioner 
claims that the Beneficiary will set up the policies and procedures for the employees to follow and 
will not engage in tasks necessary to produce the end product. 
This description of duties essentially indicates that the Beneficiary will spend 45 percent of this time 
performing the tasks necessary to set up an optical laboratory. including researching potential 
locations, leasing or purchasing property, and hiring and training employees to perform the 
manufacturing duties. These are operational tasks. This is not a .. new office" petition where the 
regulations recognize that a designated manager or executive responsible for setting up operations 
may be engaged in a variety of activities not normally performed by employees at the executive or 
managerial level within the first year of operation. See 8 C.F.R. ~ 214.2(\)(3)(v)(C). Further. the 
requirement that the Beneficiary recruit and hire additional employees to carry out day-to-day 
operations to relieve the Beneficiary from performing operational duties demonstrates that the 
Petitioner did not have sufficient staff to do so when the petition was filed. The Petitioner must 
establish that all eligibility requirements for the immigration benefit have been satisfied from the 
time ofthe tiling and continuing through adjudication. 8 C.F.R. ~ 103.2(b)(1). 
The Petitioner indicates that the Beneficiary will spend 32 percent of his time on ··management" 
duties. However. the duties described include qualifying and non-qualifying duties. For example. 
the Petitioner asserts that the Beneficiary will spend 10 percent of his time coordinating development 
of a marketing plan to advertise to existing and potential clients and 7 percent of his time 
establishing policies and business practices for inventory management and making decisions with 
regard to existing and new product lines. These duties also include establishing marketing and sales 
goals (8 percent) and establishing lab safety policies (7 percent). The Petitioner provides minimal 
information regarding the specific tasks the Beneficiary will perform relating to the marketing. 
Matter of A-E- V-, Inc. 
inventory, and product areas. Accordingly, the Petitioner has not established whether the 
Beneficiary's duties related to these functions are actually executive in nature rather than 
non-qualifying. 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. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
The Petitioner also states that the Beneficiary will be involved in product diversification which 
includes: spending 13 percent of his time deciding which eye frame manufacturers the Petitioner 
will carry; and once the product line and machinery are set up. spending 10 percent of his time 
identifying sources and suppliers and negotiating for glass. lens, frames. and other raw materials. 
These tasks appear to be procurement duties which require the Beneficiary to perform the necessary 
research to identify suppliers and perform the basic operational tasks necessary to begin the 
Petitioner's expansion. The fact that the Beneficiary will direct the Petitioner's expansion 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 in nature. Section 
101(A)(44)(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, the position as described is insufficient to establish that his actual duties will 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 shows the Beneficiary in the proposed position of chief 
executive officer and depicts a marketing director directly subordinate to his position. The chart also 
identifies a merchandiser and a dispatch manager in positions subordinate to the marketing director. 
In a separate document, the Petitioner identities the marketing director as a "'manager." and lists the 
two additional employees as responsible for processing orders received from the website. The 
Petitioner indicates that it plans to add 10 to 11 employees within 15 months of beginning the 
expansion. We note again, however, that this is not a "new office" petition, as the Petitioner has 
been operating since 2011. Petitioners that do not meet the definition of a new office must establish 
that they can support a beneficiary in a managerial or executive capacity as of the date the petition is 
filed. 
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 101(a)(44)(B) of the 
Act. Under the statute, a beneficiary must have the ability to ''direct the management" and ·'establish 
4 
Matter of A-E- V-, Inc. 
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 established that the Beneficiary's 
subordinates manage the organization. rather than perform the operational and administrative tasks 
necessary to run the business. When the petition was filed, the Petitioner did not demonstrate that 
the Beneficiary will direct the management of the organization or will otherwise perform in an 
executive capacity. 
The Petitioner employed three individuals when the petition was tiled in this matter. The description 
of duties for the marketing director, who has also been identified as a "manager:· shows that more 
likely than not this individual will be responsible for the operational and administrative duties of the 
Petitioner's current operations. Similarly. the individuals in the positions of merchandiser and 
dispatch manager, who are also described as processing orders received from the website, perform 
the daily operational tasks. The record does not establish that any of these three individuals are 
primarily managers or supervisors. Accordingly. the Petitioner does not have a subordinate level of 
"managerial'' employees for the Beneficiary to direct. The Petitioner's plans to hire additional 
employees to support the Beneficiary and its expansion do not establish the Beneficiary's executive 
capacity when the petition was tiled. 
Section 101(a)(44)(C) of the Act requires that U.S. Citizenship and Immigration Services must take 
into account the reasonable needs of the organization in light of the overall purpose and stage of 
development of the organization if statling levels are used as a factor in determining whether an 
individual is acting in a managerial or executive capacity. To establish that the reasonable needs of 
the organization justify a beneficiary's job duties, a petitioner must specifically articulate why those 
needs are reasonable in light of its overall purpose and stage of development. The Petitioner has not 
explained how the reasonable needs of the petitioning enterprise justify the Beneticiary's 
performance of non-executive duties. A petitioner's unsupported statements are of very limited 
weight and normally will be insufficient to carry its burden of proof. See Matter of Chmmthe. 
25 I&N Dec. 369. 376 (AAO 2010). Furthermore, the reasonable needs of the Petitioner will not 
supersede the requirement that the Beneficiary must be "primarily" employed in a managerial or 
executive capacity, spending the majority of his or her time on non-qualifying duties. See sections 
10l(a)(44)(A) and (B) ofthe Act. 
Ill. QUALIFYING RELATIONSHIP 
The Director did not address the issue of the Petitioner's qualifying relationship with the 
Beneficiary's foreign employer. However. the record here does not include any evidence 
corroborating the Petitioner's statements that the Beneficiary owns 50 percent of the foreign entity 
.
Matter~~ A-E- V-, Inc. 
and owns 100 percent of the Petitioner. Rather, the initial record included copies ofthe Petitioner's 
federal tax returns for 2013, 2014, and 2015. Each of these tax returns on Schedule G identities 
as the Petitioner's 100 percent owner. In response to the Director's RFE. the 
Petitioner submitted a copy of the 2015 Form 1120 which now identities the Beneficiary as the 
Petitioner's 100 percent owner on Schedule G. The Petitioner does not o1Ter evidence that an 
amended Form 1120 has been tiled with the Internal Revenue Service . As the record docs not 
include stock certificates , a stock ledger. or other evidence of the Beneficiary's consideration paid 
for his purported interest in the Petitioner. we find that the record does not establish a qualifying 
relationship between the Petitioner and the Beneficiary's foreign employer. For this additional 
reason, the petition cannot be approved. 
IV. CONCLUSION 
The appeal will be dismissed because the Petitioner has not established that the Beneficiary will be 
employed in the United States in a managerial or executive capacity and that the Petitioner has a 
qualifying relationship with the Beneficiary ' s foreign employer. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-E-V-. Inc., ID# 738998 (AAO Nov. 30, 2017) 
4 
The record includes three different spelling of the Petitioner's ·'manager's" last name. His last name appears as 
and