dismissed L-1A Case: Fashion

U.S. Citizenship 
and Immigration 
Services 
MATTER OF I-T-S-USA. INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 26, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a clothing and fashion company, seeks to continue the Beneficiary's temporary 
employment as its president and chief executive officer (CEO) under the L-1 A nonimmigrant 
classification for intracompany transferees. 1 See Immigration and Nationality Act (the Act) section 
10l(a)(15)(L), 8 U.S.C. § 1101(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 Vermont Service Center denied the petition, concluding that the record 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 contends that the Director ignored the legal and factual substance of the 
Petitioner's assertions. The Petitioner states that it has clearly established that the Beneficiary 
oversees managerial and professional subordinates who will relieve the Beneficiary from performing 
non-qualifying operational duties. 
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. 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. Section I 0 I (a)( 15)(L) of the Act. 
1 The Petitioner previously filed a ''new office" petition on the Beneficiary's behalf which was approved for the period 
August 25, 2015, to August 24, 2016. 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(1)( I )(ii)(F). The 
regulation at 8 C.F.R. § 214.2(1)(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. 
Matter (~fI-T-S-USA, Inc. 
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: 
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 beneticim-y"s foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
The statute defines an "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 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 IOI(a)(44)(B) ofthe Act. 
The law defines the term "managerial capacity" as an assignment in which an 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; has the authority to hire and tire or 
recommend those as well as other 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 
IOI(a)(44)(A) of the Act. Further. ''[a] first-line supervisor is not considered to be acting in a 
managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees 
supervised are professional." !d. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USClS) takes into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. See section 10l(a)(44)(C) ofthe Act. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that it was sufficiently operational as of the 
date of the petition to support the Beneficiary in a managerial or executive capacity. and concluded 
that it was more likely than not that the Petitioner did not have sufficient staff to relieve the 
Beneficiary from significant involvement in non-qualifying operational tasks. 
On appeal, the Petitioner asserts that the Beneficiary qualities as a personnel manager and executive 
overseeing subordinate managers and professionals and contends that she "never" performs day-to­
day operational duties. The Petitioner states that the Director overemphasized the small size of the 
company and did not take into account the reasonable needs of the organization as required by the 
regulations. The Petitioner further contends that the Beneficiary qualities as a function manager 
responsible for establishing the goals and policies of the organization and overseeing its growth and 
development. The Petitioner states that the Beneficiary's duties are sufficiently detailed and asserts 
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Matter of 1-T-S- USA, Inc. 
that they overwhelming demonstrate that she would spend a majority of her time on qualifying 
managerial or executive tasks under the extended petition. 
When examining the managerial or executive capacity of the Beneficiary. we will look first to 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(l)(3)(ii). Beyond the required description of 
the job duties, USCIS examines the claimed managerial or executive capacity of a beneficiary. 
including the company's organizational structure, the duties of a beneticiary"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 business and its staffing levels. 
A. Duties 
Based on the definitions of managerial and executive capacity. the Petitioner must tirst 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 or executive duties, as opposed to ordinary 
operational activities alongside the Petitioner's other employees. See fctmily Inc. v. USCIS. 469 
F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
The Petitioner stated that its business is focused on "the online sales of designer clothes for women 
including dresses, tops, skirts made by talented Ukrainian designers... The Petitioner indicated that it 
launched the' brand featuring Ukrainian designers and stated that it would focus on online 
sales of clothing through its own website. 
We agree with the Director that the Petitioner submitted a vague duty description for the Beneficiary 
that does not convey her actual day-to-day tasks or establish that she would devote her time 
primarily to managerial or executive duties. The Beneficiary's duty description includes several 
general duties that could apply to any executive or manager acting in any business or industry and 
does not provide insight into the nature of her role within the scope of the Petitioner's online retail 
business. For example, the Petitioner stated that the Beneficiary "devises strategies. formulates all 
strategic policies and objectives," "implements administrative and operation policies or procedures." 
"establishes marketing, sales, and financial goals,'' "directs the overall operation of the business:· 
"implements the company's guidelines,'' "establish[es] goals and policies." ''directs the company"s 
financial goals," "controls the investment of funds," "executes capital-raising strategies," and 
"propose[ s] purchases of equipment." amongst other duties. 
The Petitioner provided few examples and little supporting documentation to demonstrate the 
Beneficiary's performance of these duties. such as strategic policies or objectives she implemented, 
policies or procedures she established, marketing, sales, or financial goals she set. guidelines she 
implemented, goals and policies she put in place, investments she managed. capital she raised, or 
Matter of I-T-S-USA. Inc. 
equipment she purchased. The Petitioner has not clearly articulated what the Beneficiary does on a 
daily basis. 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 of reiterating the regulations. Fedin Bros. Co .. Ltd. v. Sava. 724 F. Supp. 1103. 1108 
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Further, as noted by the Director, the Petitioner indicated that the Beneficiary would continue to 
perform the exact same duties under the extended petition that she performed during the Petitioner's 
initial year of operations. However, the Petitioner has provided substantial supporting evidence 
reflecting the Beneficiary's performance of non-qualifying duties during the previous year. This 
evidence includes numerous emails and transactional documents showing that she has been shipping 
clothing, investigating customs matters related to shipment, dealing with blog posts and edits thereto, 
attending fashion shows, and purchasing clothing. In fact, the Beneficiary"s duties state that she .. is 
responsible for purchasing, sales, hiring, [and] customer services quality control" and that she 
"approves all manufacturers, vendors, and suppliers, as well as merchandise orders:· Therefore. the 
Beneficiary's duties and supporting documentation reflect that she has been and will be involved in 
nearly all operational matters of the business, including tasks related to the acquisition. sale. and 
shipment of clothing and the creation of marketing materials. The Petitioner does not assert that this 
will change during the second year or demonstrate that the Beneficiary would be delegating these 
tasks to the subordinates who were in place at the time of tiling. 
In addition, the Petitioner submitted a description of the Beneficiary's ··typical daily routine" which 
included several tasks that are not supported by the evidence. For instance. the daily routine stated 
that the Beneficiary meets daily with a logistics manager. However, the supporting evidence does 
not establish that this employee had been hired at the time of tiling. as the Petitioner's organizational 
charts states that this position would be filled in "Year 2." Likewise. the daily routine states that the 
Beneficiary would meet with the company" s outside accountant and attorney on a daily basis. Yet 
the Petitioner's evidence does not suggest that these outside resources provide extensive services or 
that the Beneficiary would meet or interact with them every day. The Petitioner's 2016 federal tax 
return shows that it spent only $3,594 on "legal and professional" services and $5,330 on .. outside 
services and independent contractors.'' Further, the daily routine states that the Beneficiary will hold 
a daily call with the vice president of operations, coordinate with "banking experts to review and 
resolve any financing," and ·'hold a few phone meetings with major clients." However. the 
supporting documentation does not substantiate that the company regularly coordinates with banking 
experts or that it has major clients. In sum. the discrepancies and unsupported statements in this 
proffered daily routine leave doubt as to whether it provides a complete or accurate account of the 
Beneficiary" s actual duties as of the date of the petition. 
Moreover, several duties included in the daily routine appear more consistent with the Beneficiary"s 
focus on non-qualifying operational tasks, which are also reflected in the submitted emails and other 
supporting evidence. For example, the daily routine states that the Beneficiary will "plan out dates 
when the payments that are due will be paid,'' "analyze our payable and receivable accounts ... 
''resolve any questions/concerns in regards to the available product inventory:· and .. review the 
company's online sales efforts.'' The evidence indicates that the Beneficiary would continue her 
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Matter of 1-T-S- USA, Inc. 
significant involvement in non-qualifying duties under an extended petition. rather than performing 
primarily managerial or executive tasks. 
Even though the Beneficiary holds a senior position within the organization, the fact that she 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. 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; however. the 
position descriptions alone are insut1icient to establish that her actual duties would be primarily 
managerial or executive in nature. 
B. Staffing 
In support of the petitiOn, the Petitioner provided an organizational chart reflecting that the 
Beneficiary supervised a vice president of operations, who in turn. oversaw "'accounting & 
bookkeeping services (outsourced),'' a sales and marketing specialist, an administrative manager. 
and "online marketing and SEO (outsourced)" identified as The Petitioner 
provided evidence that it employed the Beneficiary and the three claimed employees at the time of 
filing. 
The Petitioner has referred to the Beneficiary's position as both executive and manageriaL 
emphasizing in response to the Director's request for evidence that she would oversee a subordinate 
manager and professionals. The statutory 
definition of "managerial capacity" allows for both 
"personnel managers" and "function managers." See section 10l(a)(44)(A)(i) and (ii) of the Act. 
Personnel managers are required to primarily supervise and control the work of other supervisory. 
professional, or managerial employees. The statute plainly states that a "'first line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professiona1.'' 2 Section 101(a)(44)(A) of the Act. If a 
petitioner claims that a beneficiary directly supervises other employees. those subordin ate employees 
must be supervisory, professional, or managerial, and the beneficiary must have the authority to hire 
and fire those employees, or recommend those actions. and take other personnel actions. Sections 
101(a)(44)(A)(ii)-(iii) ofthe Act. 
The Petitioner has not submitted sut1icient supporting evidence to demonstrate that the Beneficiary 
supervises a managerial subordinate as asserted. The Petitioner provided a vague duty description 
for the Beneficiary's sole claimed direct subordinate. the vice president of operations. For instance. 
2 To determine whether the Beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. C( 8 C.F.R. ~ 204.5(k)(2) 
(defining ''profession" to mean ''any occupation for which a United States baccalaureate degree or its foreign equivalent 
is the minimum requirement for entry into the occupation''). Section I 0 I (a)(32) of the Act states that "ft]he term 
profession shall include but not be limited to architects, engineers, lawyers. physicians, surgeons, and teachers m 
elementary or secondary schools , colleges, academies, or seminaries.'' 
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Matter ofl-T-S-USA, Inc. 
the Petitioner states that this position will be responsible for "implementing the administrative and 
operational policies and procedures,'· oversee "contractual negotiations" and ""investment:· set 
"strategic policies and objectives," and formulate '·key decisions.'' Not only are these duties vague 
and not reflective of the employee's actual day-to-day tasks, they overlap significantly with the 
Beneficiary's stated duties. The Petitioner's supporting evidence show that the vice president is a 
party to the Beneficiary's email conversations on various day-to-day operational matters. such as 
coordinating the purchase and delivery of goods. but the record does not support that this employee 
is performing managerial duties. 
Furthermore, the Petitioner provides little explanation or evidence to demonstrate that the 
Beneficiary would supervise professional employees. We acknowledge that the Petitioner provided 
evidence that the vice president of operations holds a foreign degree in maritime navigation. but this 
is not established as the equivalent of a U.S. bachelor's degree and this degree is unrelated to the 
duties of his asserted position. Otherwise, the Petitioner does not articulate the bachelor's degrees 
required for any of the subordinate positions and has not documented that any other employees hold 
such a degree. In sum, the Petitioner has not shown that the Beneficiary's subordinate employees 
are supervisory, professional, or managerial, as required by section 10l(a)(44)(A)(ii) of the Act 
when seeking classification as an L-1 A manager based on the supervision of personnel. 
In addition, the Petitioner's future hiring plans suggest that the company's existing staff was not 
sufficient to relieve the Beneficiary from performing a number of non-managerial duties at the time 
of filing. The Petitioner submitted a projected organizational chart for its second year of operations. 
including plans to hire an online shop specialist, a logistics specialist, and a customer services 
representative, all subordinate to the vice president of operations. However. the lack of these 
operational level employees leaves question as to who was handling these non-qualifying tasks when 
the petition was tiled, such as directing and monitoring transportation and shipping activities. 
handling the company's online sales, and responding to customer service inquiries. 
Further, the submitted evidence reveals several other operational tasks, including writing blog posts 
to promote the company's designers, updating the company's online presence and social media, 
searching for designers, purchasing and receiving clothing, posting clothing for sale on the 
company's website, and shipping sold clothing. Without explanation. it is not clear who is handling 
these non-managerial tasks, which include identifying clothing items, contacting suppliers. ordering 
clothing, and assuring payment to vendors. As discussed. the Petitioner provides several emails 
reflecting that the Beneficiary and the vice president of operations have been performing these types 
of tasks, including coordinating with a contact in New York for the shipment of dresses, and 
arranging the Beneficiary's attendance at a fashion show. The Petitioner also provided invoices 
related to the purchase of clothing bearing the Beneficiary's name. and 
receipts related to the shipment of goods also including the Beneficiary's name. The evidence does 
not support the Petitioner's assertion that the Beneficiary ·'never·· performs any non-qualifying 
duties. Without explanation and supporting evidence. it is reasonable to conclude that the 
Beneficiary will continue to perform various non-qualifying operational tasks into the second year of 
operations, when the Petitioner may hire staflto perform these types of duties. 
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Matter of I-T-S- USA, Inc. 
In addition, the Petitioner asserts that its organizational structure includes independent contractors 
supervised by the vice president of operations, including a company handling its accounting and 
bookkeeping services and a company performing online marketing duties for the company, 
However, as noted, the submitted evidence does not support a conclusion that these 
independent contractors are regularly engaged such that they can be considered part of the 
company's organization structure. Again, the Petitioner's 2016 tax return shows that the company 
spent only $3,594 on "legal and professional'' services and $5330 on ··outside services and 
independent contractors." Otherwise, the Petitioner provides only a few invoices from 
and a high level market research analysis provided by this vendor for the company in late 
2015. There is not sufficient corroborating evidence that these outside resources are signi tic ant 
contributors to the Petitioner's day-to-day operations. 
In the alternative, the Petitioner also asserts that the Beneficiary would primarily manage an 
essential function of the organization. The term "function manager" applies generally when a 
beneficiary does not supervise or control the work of a subordinate staff but instead is primarily 
responsible for managing an "essential function" within the organization. S'ee section 
1 01(a)(44)(A)(ii) of the Act. The term "essential function'' is not defined by statute or regulation. If 
a petitioner claims that a beneficiary will manage an essential function, a petitioner must furnish a 
written job offer that clearly describes the duties to be performed in managing the essential function, 
or more specifically, identify the function with specificity, articulate the essential nature of the 
function, and establish the proportion of a beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition. a petitioner's description of a 
beneficiary's daily duties must demonstrate that the beneficiary will manage the function rather than 
perform duties related to the function. See Matter ol Z-A -. Inc., Adopted Decision 2016-02 (AAO 
Apr. 14, 2016). 
Although we acknowledge that the Beneficiary would likely be responsible for the direction of the 
company in general, the Petitioner has not demonstrated that she will be primarily tasked with 
managing an essential function of the organization and sufficiently relieved from performing non­
qualifying operational tasks. The Petitioner does not identify a specific essential function which the 
Beneficiary manages, nor explained it in detail. It is not sufficient for the Petitioner to merely state 
that the Beneficiary will be the president and CEO and manage the company as a whole to establish 
her management of an essential function. As we discussed, the Petitioner has provided vague duties 
for the Beneficiary that do not establish her management of an essential function. Further, it has 
provided duties and evidence indicating that the Beneficiary is likely substantially engaged in the 
performance of non-qualifying operational tasks and it has not adequately supported its assertion that 
she has been sufficiently relieved of these tasks as of the date of the petition. As such. the Petitioner 
has not established that the Beneficiary qualities as a function manager. 
On appeal, the Petitioner also makes reference to the Beneficiary acting in an executive capacity. 
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 I 01 (a)( 44 )(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management"' and .. establish 
Matter of I-T-S- USA, 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 ofthe organization.'' !d. 
Here. even though the Beneficiary has the appropriate level of authority. the Petitioner has not 
established that, as of the date of filing, she was primarily concerned with the broad policies and 
goals of the organization, that the day-to-day management rested with a subordinate tier of 
management, or that she would be relieved from substantial involvement in the day-to-day 
operations of the business. We acknowledge that a company's size alone may not be the 
determining factor in denying an L-1 A visa petition without taking into account the reasonable needs 
of the organization. See section 101 (a)( 44 )(C) of the Act. However. it is appropriate for USC IS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as the 
absence of employees who would perform the non-managerial or non-executive operations of the 
company. Family Inc., 469 F.3d 1313; Systronics Corp. r. INS. 153 F. Supp. 2d 7. 15 (D.D.C. 
2001 ). 
As discussed, the Petitioner did not consistently or sufficiently describe the Beneficiary" s duties and 
we cannot determine that her role would primarily involve executive-level tasks. Further, the 
Petitioner provides substantial evidence reflecting the Beneficiary's involvement in non-qualifying 
operational duties and the provided duty description and supporting evidence do not reflect that she 
has been sufficiently relieved of these tasks. In addition, the Petitioner has not demonstrated that the 
Beneficiary had managerial or professional subordinates as of the date of the petition. or that her 
claimed subordinates would relieve her from performing non-qualifying operational duties. For all 
of these reasons, the appeal will be dismissed. 
III. CONCLUSION 
The appeal must be dismissed as the Petitioner did not establish that it will employ the Beneficiary 
in a managerial or executive capacity under the extended petition. 
ORDER: The appeal is dismissed. 
Cite as Matter ofi-T-S-USA, Inc., 10# 620822 (AAO Sept. 26. 2017) 
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