dismissed L-1A Case: Finance

U.S. Citizenship 
and Immigration 
Services 
MATTER OF X-USAH-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 7, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a "mutual funds management and venture capital investment" business, seeks to 
continue the Beneficiary's temporary employment as its chief executive officer (CEO) under the L-IA 
nonimmigrant classification for intracompany transferees. 1 Immigration and Nationality Act (the Act) 
section 101(a)(l5)(L), 8 U.S.C. § 1101(a)(15)(L). The L-IA 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 it would employ the Beneficiary in a managerial or executive capacity 
under the extended petition. 
On appeal, the Petitioner asserts that the Director did not give appropriate consideration to the 
Beneficiary's job description, the detailed documentation in the record, the Petitioner's reasonable 
needs, or the Petitioner's consistent claim that the Beneficiary would be employed in an executive 
capacity, rather than in a managerial capacity. 
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 10l(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. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
April 15, 2017, until April 14, 2018. 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. § 2 I 4.2(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 of X-USAH-, 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 beneficiary's foreign employer. 
8 C.F.R. § 214.2(1)(14)(ii). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary will be employed in a managerial or executive capacity. However, the Petitioner does 
not claim that the Beneficiary will be employed in a managerial capacity, and we will restrict our 
analysis to whether the Beneficiary will be employed in an executive capacity. 
The term "executive capacity" is defined 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 10l(a)(44)(B) of the Act. 
When examining the executive capacity of a given beneficiary, we will look to the petitioner's 
description of the job duties. 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 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. 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. 
A. Duties 
Based on the definition of executive 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 executive duties, as opposed to ordinary operational activities alongside the 
Petitioner's other employees. See Family Inc. v. U,SCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, 940 F.2d at 1533. 
With the initial filing, the Petitioner provided a lengthy narrative description of the duties the 
Beneficiary is expected to perform under the extended petition, which was divided into the following 
areas of responsibility: 
2 
Matter of X- USAH-, Inc. 
1. Develop and approve business strategies for [the Petitioner] (20% or 8 hours per 
week) 
2. Affix and oversee the achievement of market expansion efforts (20% or 8 hours 
per week) 
3. Determine the best practices approach for [the Petitioner's] business operation 
and make important decisions in formulating company-wide external policies 
(20% or 8 hours per week) 
4. Direct joint venture, cooperative projects, or M&A discussions with growth tech 
companies (10% or 4 hours per week) 
5. Maintain rapport with key personnel of existing clients and prospective clients 
( 10% or 4 hours per week) 
6. Financial and budget management (10% or 4 hours per week) 
7. Staff recruiting and replacement decisions (5% or 2 hours per week) 
8. Communicate with parent company (5% or 2 hours per week) 
In a request for evidence (RFE), the Director acknowledged the submitted description, and advised 
the Petitioner that it did not sufficiently describe the specific tasks the Beneficiary would perform on 
a day-to-day basis. We agree with the Director's finding that the description, while lengthy, did not 
delineate the Beneficiary's proposed duties with sufficient clarity. For example, in describing the 
Beneficiary's responsibility for determining best practices for business operations, the Petitioner 
noted that the Beneficiary "is renowned for his trading philosophy," will "pay great attention to risk 
management when he directs the financial operations," will "cooperate with the U.S. government's 
anti-money laundering program," and "believes that it is [the Petitioner's] priority to prevent white­
collar crimes associated with fraud and insider trading.'' These statements do not adequately describe 
the expected duties that will require 20% of the Beneficiary's time. The Petitioner further noted that 
the Beneficiary's responsibility to "develop and approve business strategies" will include "devising 
important strategies to address major issues" and making "final decisions regarding business 
expansion strategies," but this information was not sufficiently descriptive and did not shed light on 
the nature of his day to day work. 
These types of overly broad statements appeared throughout the description but do not define 
concrete job duties or explain what specific tasks would occupy the Beneficiary's time. 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), aff'd, 905 
F.2d 41 (2d. Cir. 1990). Accordingly, the Director requested a more detailed breakdown of the 
Beneficiary's daily tasks and the percentage of time he would spend on each specific duty. 
In response to the RFE, the Petitioner submitted a revised statement of duties for the Beneficiary. 
Rather than elaborating on the eight areas of responsibility listed above, the Petitioner re-organized 
the description with the intent of showing how the Beneficiary performs primarily executive duties 
in overseeing "the achievement of market exploration efforts and market development efforts for the 
Petitioner's Financial Market Division, Educational Market Division, and Real Estate Market 
Division." Referencing the statutory definition of "executive capacity," the Petitioner stated that the 
,., 
.
Matter of X-USAH-, Inc. 
Beneficiary "has directed and will continue to direct the management'' of the company by directing 
the management and development of each of the company's three divisions. The response to the 
RFE was actually less detailed than the original description. Although the Petitioner emphasizes that 
it was eight pages in length, the description was interspersed with long lists of attached exhibits and 
descriptions of potential business activities, rather than explanations of the Beneficiary's duties. 
With respect to the Financial Market Division, the Petitioner explained that the Beneficiary directs 
the CFO/COO to conduct due diligence on a variety of investment opportunities including mutual 
funds, stocks, venture capital and QFII, while the Beneficiary is charged with making final business 
decisions and decided to invest one million dollars in in December 2017 and to set up an 
incubated fund, to make investments in early stage startups. The 
Petitioner explained that the Beneficiary has also directed the COO/CFO to conduct due diligence of 
another company, and directed the foreign affiliate's 
departments to conduct diligence on 1, a biotech company in which it is 
considering a $ 1. I million investment. The Petitioner mentioned a strategic alliance agreement with 
and stated that it is conducting due diligence on two U.S. staii-ups as part 
of this agreement. Finally, the Petitioner noted that the Beneficiary "has also directed a variety of 
projects to explore future investment opportunities" noting that he intends to explore opportunities in 
"semiconductor, AI and big data," and was considering retaining premium fund service providers 
and legal service providers to start a hedge fund. The Petitioner submitted extensive documentation 
related to these companies and potential investment opportunities, but neither the documentation nor 
the description itself provided additional details regarding the nature of the Beneficiary's specific job 
duties. 
The Petitioner went on to state that the Beneficiary directs the management and development of the 
educational market division, noting that he accomplishes this by supervising an investment specialist 
and reviewing, considering, and making business decisions on whether to pursue specific investment 
opportunities in the educational market. The Petitioner provided a copy of a Memorandum of 
Understanding (MOU) that it executed in January 2018 with another U.S. company 2 
and stated that the top priority of this division would be to research the feasibility of establishing an 
online English teaching center for Chinese students. With respect to the Beneficiary's management 
and development of the Real Estate Market Division, the Petitioner noted that he directs a research 
analyst who researches California's real estate market and performs financial analysis on market 
trends, geographic data and Chinese investors' buying habits for his review so that he can make final 
business decisions on whether to pursue specific investment opportunities. The Petitioner explained 
that it partnered with "on real estate investment"3 and is in the early stages of 
bringing in a $10 million Chinese investment. While the Petitioner provided documentation related 
2 Under the terms described in the MOU, the Petitioner would hire i nstructors and guides and provide support and 
logistics for study a broad programs; research and license after-school Engli sh programs in the U.S. and coordinate 
efforts to train Chinese teachers; recruit and train U.S. college admissions experts to work with Chinese high schools 
students; and line up investors to provide funding for an English/Chinese kindergarten program in China. 
3 The submitted "Real Estate Investment Service Agreement" indicates that the Petitioner will exercise its best efforts to 
introduce early stage investment opportunities to and to help obtain funding in exchange for a 5% service 
fee for any closed deals, or a consulting fee for any opportunity that d oes not pursue. 
4 
Matter of X-USAH-, Inc. 
to the opportunities explored by these two divisions, its response did not sufficient explain the day­
to-day duties the Beneficiary performs to oversee the real estate and educational markets divisions. 
The Petitioner further stated that the Beneficiary establishes the goals and policies of the company 
by "directing the management team" for each division and establishing "best practice approaches'· 
with respect to financial risk management, investment research, fraud prevention and 
countermeasures against insider trading"' and "will continue to establish the goals and policies.•· 
Finally, the Petitioner emphasized that the Beneficiary "has exercised and will continue to exercise 
wide latitude in final decision making" with respect to market exploration and business 
development, financial and budget management, and staffing. and that he will continue to receive 
supervision from the top executive of the foreign affiliate. who also owns the Petitioner. These last 
three responsibilities simply paraphrase the statutory description of executive capacity and did not 
provide any additional clarity regarding the nature of the duties the Beneficiary actual duties. 
Conclusory assertions regarding the Beneficiary's employment capacity are not sufficient. Merely 
repeating the language of the statute or regulations does not satisfy the Petitioner·s burden of proof. 
Fedin Bros .. 724 F. Supp. at 1108, aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Assoc.\· .. Inc. v. Meissner, 
1997 WL 188942 at *5 (S.D.N.Y.). 
For these reasons, we agree with the Director's conclusion that the Petitioner's response to the RFE did 
not add the requested specificity regarding the nature of the Beneficiary"s expected duties. The 
description conveys the Beneficiary's authority over the Petitioner's business, but does not clarify 
what he will do as part of his daily routine. The Petitioner emphasizes the Beneficiary" s development 
of policies, strategies, and performance of higher level planning and decision-making activities, but 
does not provide sufficient information to support a finding that he would focus primarily on these 
duties. 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 
actual duties themselves will reveal the true nature of the employment. Fedin Bros .. 724 F. Supp. at 
1108, aff'd, 905 F.2d 41 (2d. Cir. 1990). 
The fact that the Beneficiary will direct the business as its senior employee does not necessarily 
establish eligibility for classification as an intracompany transferee in an executive capacity within the 
meaning of section 101 ( a)( 44 )(8) of the Act. As discussed further below. we cannot determine to 
what extent the Beneficiary's subordinate employees would assist him with non-executive tasks 
required to operate the business, and the record does not sufficiently support the Petitioner's claim that 
he will spend his time primarily on higher-level planning, strategy, and decision-making activities. 
B. Staffing and Organizational Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, we 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) of the Act. 
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 
5 
.
Matter of X- USAH-, Inc. 
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 Beneficiary 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. 
The Petitioner stated that it has five employees and submitted an organizational chart that depicts the 
Beneficiary as CEO with three direct subordinates: the CFO/COO in the Financial Market Division: 
an investment specialist in the Educational Market Division; and a research analyst in the Real 
Estate Marketing Division. The chart also depicts a back-end software developer in the financial 
market division. 
In addition, the Petitioner claims that the Beneficiary supervises two departments within the foreign 
entity (Financial Engineering and Private Equity Investment) but did not identify any staff by name, 
document their employment, describe the tasks of the individual staff members, or provide evidence 
of the work they perform for the U.S. company. A petitioner's unsupported statements are of limited 
weight and normally will be insufficient to carry its burden of proof. The Petitioner must support its 
assertions with relevant, probative, and credible evidence. See Matter <f Chawathe, 25 I&N Dec. 
369, 376 (AAO 2010). The Petitioner did not submit sufficient evidence to demonstrate that the 
Beneficiary relies on the support of these foreign staff. 
The Director asked the Petitioner to provide each employee's job description, the required 
educational level for each position, and evidence of wages paid to the employees. The Petitioner 
stated that its CFO/COO, has a master's degree in computer science, over 20 years of 
software development expertise, 15 years of investment experience, and was most recently the 
founder and CEO of Analytic Investment Management before joining the Petitioner. However, the 
Petitioner also provided evidence that it entered into an "Investment Advisory Services Agreement" 
with which was signed by in his capacity as 
President and CEO of Analytic Investment Management in December 2017, six months after he 
began receiving wages from the Petitioner. This evidence indicates that he maintains his position as 
CEO of an unrelated company and raises questions as to how much of his time is devoted to the 
petitioning company. 
Turning to the CFO/COO position description, the Petitioner states that this position advises the 
CEO on fund business strategies; designs and implements fund business plans and procedures; 
advises the CEO on fundraising ventures, assists with expansion activities; reviews venture 
investment opportunities and makes recommendations; manages daily operations and supervises the 
work of subordinate employees, implements business development and expansion goals; implements 
corporate policies; evaluates employee performance and provides recommendations on promotions 
and demotions; and assists the Beneficiary with "the client/vendor relationship management.'· 
However, this description is not consistent with the position· s placement in the Petitioner's 
hierarchy. The organizational chart depicts this position as the only paid position in the Financial 
Markets Division, on the same level as the research analyst and investment specialist working in the 
.
Matter of X-USAH-. Inc. 
other divisions, and not as a manager who oversees all other staff as well as superv1smg the 
company's daily operations. Further, the Petitioner did not provide evidence of wages paid to 
at the time of filing despite the Director's request for updated evidence in the RFE. While this 
employee, based on the Petitioner's statements, appears qualified to conduct due diligence and 
research activities, it is unclear that one employee, especially one who appears to have his own 
separate business with its own obligations, would be able to relieve the Beneficiary from having to 
perform non-executive duties associated with the Financial Markets Division, such as research, 
analysis, presentations and meetings with potential clients and partners, and other non-executive 
tasks. 
The Petitioner states that the investment specialist in the educational market division conducts 
market research on gaps between Chinese and California K-12 education; searches and performs 
business analysis on K-12 educational joint venture /investment opportunities in California; brings 
"online and office educational services in California to China"; presents to potential investors on the 
educational service opportunities in California; and "provide[ s] accommodations to wealthy Chinese 
families and investors who visit California." However, it is unclear whether the Petitioner was 
actually providing any services in this area at the time of filing and therefore these duties appear to 
be prospective in nature. 
The Petitioner indicated that the research analyst in the real estate market division is responsible for 
building working relationships with lenders, appraisers, brokers and research professionals, 
providing financial analysis on the California real estate market and making recommendations to the 
Beneficiary, advising Chinese investors on U.S. real estate investment opportunities; monitoring and 
analyzing market conditions, and monitoring and analyzing key demographic and economic trends 
in California. The Petitioner submitted two invoices issued to for "financing service'· and 
"consulting service,'' but it did not explain what specific services it has provided in the real estate 
sector or who is performing these services. 
The Petitioner did not provide any information regarding the investment specialist's or research 
analyst's educational or professional backgrounds or updated evidence of wages paid to them after 
February 2018. Finally, the Petitioner submitted evidence related to its ''Back-End Developer 
Intern," an F-1 student in optional practical training. The description of this unpaid position 
indicates that he will learn and practice software quality processes tools and best practices in a 
financial services company, perform web development and other IT tasks, and receive professional 
training in these areas. These duties do not appear to relate to the activities of the financial market 
division and the Petitioner did not include training of this employee as part of the CFO'sjob duties. 
In reviewing the Petitioner 's organizational structure, the Director noted that the Petitioner's 
response did not include the requested updated payroll summary and wage records, nor did it 
establish that the organization has a subordinate level of managers for the Beneficiary to oversee. 
The Director found that the Beneficiary would not be sufficiently relieved from involvement in 
routine operational tasks, as the Petitioner had not established that it had employees to perform 
customer service and administrative tasks for three divisions. 
.
Matter of X-USAH-, Inc. 
On appeal, the Petitioner emphasizes that the definition of "executive capacity'' does not require the 
Beneficiary to manage any number of employees, and maintains that it established that it has the 
organizational complexity to warrant having an executive. In response to the Director"s finding that 
the Petitioner did not establish who would handle the administrative and customer services of three 
divisions, the Petitioner explains that it does not currently have a reasonable need for a full-time 
administrative employee. It maintains that each subordinate employee performs the non-managerial 
duties within their respective division, and is responsible for client communications within their 
assigned area of responsibility. 
The Petitioner also maintains that it provided sufficient evidence of wages paid to its employees and 
asserts that the Director must have overlooked the submitted payroll summaries dated through 
February 1, 2018 and IRS Forms W-2 for 2017. However, that evidence was submitted at the time 
of filing, and the Director subsequently requested updated evidence. Given that the petition was 
filed in April 2018, it was not unreasonable for the Director to request that the Petitioner provide 
evidence of its continuing employment of the claimed staff beyond February 1. 
We acknowledge the Petitioner's claim that the three claimed staft~ plus the unpaid intern, are 
sufficient to meet its reasonable based on the company's current stage of development. However. 
the Petitioner is also required to show that it has grown to the point where it requires the Beneficiary 
to perform primarily executive duties and the record continues to lack evidence of his actual day-to­
day duties , or evidence that the company has reached the point where it can support the Beneficiary 
in an executive capacity. The regulations allow for a one-year period for a new office to commence 
doing business and develop to the point that it will support a beneficiary in a qualifying executive 
position. Although the petitioner submitted extensive documentation regarding its research into 
potential business opportunities, the evidence of its actual activities is fairly minimal. 
The new office petition was valid for one year commencing in April 2017. The Petitioner submitted 
a year-end profit and loss statement for 2017 which shows that it received $64,513 in consulting 
income for that partial year, and copies of four invoices, three of which were issued in 2017. One of 
these invoices, for $50,000, was issued for "consulting services" provided to the related entity that 
the Petitioner itself established , and in which the Beneficiar y a lso holds 
the title of CEO. It is unclear what services were provided to this entity or who performed them. 
The Petitioner has also provided evidence that it completed only one investment deal during its 
initial year of operations, the one million dollar investment in . Based on this evidence, the 
Petitioner has not shown that it moved beyond an early stage of development, or grew to the extent 
where it would require the Beneficiary to spend his time primarily on making final decisions about 
the company's investments and determining its overall policies and strategies. 
The Petitioner has consistently stated that the Beneficiary will occupy the senior position in the 
company , but has not submitted a job description or supporting evidence sufficient to demonstrate 
that he would primarily perform executive duties consistent with section 101 (a)( 44 )(B) of the Act. 
As discussed above, the Petitioner did not submit sutlicient information to establish the nature of the 
Beneficiary's duties at the end of the first year of operations in support of its claim that the company 
is able to support a full-time executive position. 
8 
Matter of X-USAH-, Inc. 
III. CONCLUSION 
The appeal will be dismissed because the Petitioner did not establish that the Beneficiary will be 
employed in the United States in an executive capacity. 
ORDER: The appeal is dismissed. 
Cite as Matter of X-USAH-, Inc., ID# 1792779 (AAO Dec. 7, 2018) 
9