dismissed L-1A Case: Fish Farm

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 1-1-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 26, 2018 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner. a fish farm, seeks to extend the Beneficiary's temporary employment I as its general 
manager under the L-1 A nonimmigrant classification for intracompany transferees. See Immigration 
and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. § 1101(a)(15)(L). The L-1A 
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 Petitioner will employ the Beneficiary in the United States in an 
executive capacity. The Directo.r based this finding on discussion of the Beneficiary's duties and the 
petitioning company's staffing a year after the approval of the new office petition. 
The matter is now before us on appeal. In its· appeal, the Petitioner submits additional evidence and 
asserts that the Director erred by not considering the company's growth. The Petitioner adds that 
the record, as a whole, establishes the breadth of the Beneficiary's executive authority. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for theL-IA nonimmigrant visa classification, a qualifying organizadon must 
have employed the beneficiary in a managerial or executive capacity for one continuous year within 
three years preceding the beneficiary's application for admission into the United States. 8 C.F.R. 
§ 2!4.2(l)(3)(v)(B). 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. Jd. 
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The Petitioner previously filed a "new office" petition on the Beneficiary's behalf, approved for the period March 18, 
2015. until March 17. 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)(1)(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. 
Maller of H-. LLC 
A petitioner seeking to extend an L-1 A petition that involved a new otTice 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 found that the Petitioner did not establish that it will employ the Beneficiary in an 
executive capacity. The Petitioner docs not claim that it seeks to employ the Beneficiary in a 
managerial capacity; therefore, our analysis will focus on the Petitioner's claim that the Beneficiary 
will be employed in an executive capacity under an extended petition. The Petitioner asserts that it 
has established the Beneficiary's high level of discretionary authority, and that the Beneficiary's 
duties are primarily those of an executive. We disagree with the latter assertion, as explained below. 
"Executive capacity" means 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 fi.mction; 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. 
Based on the statutory 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). The Petitioner also 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. USCIS, 469 F.3d 1313, 
1316 (9th Cir. 2006): Champion World, 940 F.2d 1533. 
When examining the executive capacity of a given beneficiary, we will look to the petrtroncr'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(1)(3)(ii). Beyond the required description of thejob duties, 
U.S. Citizenship and Immigration Services (USCIS) examines the company's organizational 
structure, the duties of a beneficiary's subordinate employees, the presence of other employees to 
relieve a beneficiary ti-om performing operational duties, the nature of the business, and any other 
factors that will contribute to understanding a beneticiary'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 and its slatTing levels. 
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Mauer of H-. LLC 
A. Duties 
The. Petitioner stated that the Beneficiary is "responsible for the entire company's business 
management," with authority over the company's operations, finances, production, personneL 
marketing, and other aspects of the business. The Petitioner stated: 
Beneficiary will continue to direct the US tish farm business operations, ensure 
compliance with all regulatory agencies and market the products for sale in the local 
US· market, He will oversee ponds and all staff, including managers; oversee 
marketing via internet/media to attract additional wholesale buyers; supervise the 
investment of( the foreign parent company]; report directly to the Board of Directors 
all findings, including requests for additional monetary support for improvements to 
the property and equipment. 
Asked for more details, the Petitioner provided a 19-item list of responsibilities, and stated that the 
position fulfills all four elements of an executive capacity. Some of the listed duties are consistent 
with a high level of authority, such as supervising the administrative manager and developing 
policies. But others indicate lower-level, non-executive activity, such as training "all staff' and 
"[p]romot[ing] the business through advertising and marketing." 
Furthermore, the more detailed list of the Beneficiary's responsibilities dates fi·om nine months after 
the tiling date, when the Petitioner had hired several additional employees who were able to assume 
functions that, apparently, the Beneficiary himself had previously performed. Of particular 
significance is the assertion that the Beneficiary directs the management of the organization by 
supervising the administrative manager. At the time of filing, the Petitioner did not employ an 
administrative manager 2 
The Director denied the petition, stating that the job description "is broad in scope and limited in 
detail" and includes several non-qualifying tasks. The Director concluded that the Petitioner had not 
shown that the Beneficiary's duties were primarily those of an executive at the time of tiling. 
On appeal, the Petitioner maintains that it had previously established that the Beneficiary "primarily 
performs [high-level] responsibilities and does not spend a majority of his time of day-to-day 
functions." The earlier submissions, however, did not specify how much time the Beneticiary spent 
on any given task. 
The Petitioner states that the Director "relies too much on the letter from the Petitioner, this letter 
docs not stand alone in the assertion that the beneficiary has an executive role and performs 
executive duties." The Petitioner observes that "the Beneficiary is the 50% owner of the U.S. 
Company," "has sole authority to sign checks and obligate the Company to pay substantial amounts 
to its vendors and suppliers," and "continues to be the decision-maker for all new contracts." 
2 We wit\ further address the Petitioner's stafling below. 
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Mauer of H-. LLC 
Although the above information relates to the level of the Beneficiary's discretionary authority, it 
does not tell us that the Beneficiary primarily exercised that authority at the time of filing. The 
Petitioner has not provided enough information about the Beneficiary's duties, and the proportion of 
time he devoted to each of those duties at the time of tiling. 
The Petitioner has not shown that the Beneficiary's duties, at the time of filing, were primarily those 
of an executive. 
B. Staffing 
lf staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, USCIS 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) of the Act. 
The statutory dctinition 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 0 I (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. The definition presumes a management structure, 
separate from the beneficiary, for the beneficiary to direct. A 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 an 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 .. 
At the time of filing, the Beneficiary was one of three employees at the petitioning entity. The 
Petitioner stated that it would soon recruit and hire "an experienced fish farming expert" followed by 
"3 or 4 more employees." In a supplement to the initial filing, ten months later, the Petitioner 
identified seven subordinate employees, most of them hired late in 2016. 
ln the denial notice, the Director stated that the Petitioner had not shown "how two employees would 
be able to support the [Bjeneliciary's role, handle all of the daily operations of the entity, and 
therefore relieve the [B]eneficiary from performing non-qualifying duties." The Director stated that 
employees hired atier the tiling date could not establish eligibility at the time of filing. 
On appeal, the Petitioner states that the Director "is not accounting for the needs of a growmg 
organization": 
Here, when the initial filing was submitted, the newly-minted company was just a few 
years old and only staffed three employees. Therefore, based on the reasonable need 
of the fledgling company, the Beneficiary was spending more of his time, albeit not 
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Muller of H-. LLC 
the majority, on such things as human resources, operations, and training .... Now, 
the company employs many more employees .... Therefore, the Beneficiary is able 
to devote even more of his time to his executive tasks. 
The Petitioner also states that the Director "fails to recognize that businesses grow as time passes." 
The issue is not the growth of the company, but the timing of that growth. The Petitioner's initial 
new office petition could permissibly take into account planned growth over the following year. See 
8 C.F.R. § 214.2(1)(3)(v)(C)(J). But this provision does not apply to petitions to extend the 
Beneficiary's status past that initial year. The Petitioner must meet all eligibility requirements at the 
time of filing. See 8 C.F.R. § 103.2(b)(l). Subsequent hires cannot establish eligibility at the time 
of tiling. A visa petition may not be approved at a future date after a petitioner or beneficiary 
becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 l&N Dec. 248, 249 
(Reg'! Comm'r 1978). 
Judging from pay records, the Petitioner appears to have hired several employees afier the Director 
issued a request tor evidence in October 2017. (The administrative manager, for instance, earned 
less than $923 during 2016, consistent with a mid-December hiring.) In the request for evidence, the 
Director specifically stated: 
[Y]ou are required to demonstrate your organizational structure can support the 
beneficiary's proposed role at the time of filing. Hiring new employees after you 
have filed does not demonstrate the beneficiary was in a manager[ial] or executive 
capacity at the time of filing. 
The Petitioner maintains that, even at the time of filing, the company had enough employees "to 
support the beneficiary's role in an executive capacity." The Petitioner does not explain or support 
this critical assertion. The Beneficiary's two subordinates were not managers, such that the 
Beneficiary could direct the management of the company through them. 
The Beneficiary's two subordinates at the time of filing were a fann assistant and a laborer, who 
cared for the !ish and operated and maintained fann machinery. Supervision at this level is not 
inherently executive-level work. Later hires performed tasks such as sales, marketing, and driving 
delivery vehicles. The Petitioner does not explain who performed those tasks before the Petitioner 
filled the respective positions. Invoices from 2015 show that sales and deliveries took place before 
the Petitioner hired sales and delivery personnel. Even if the farm assistant or laborer performed 
those tasks, this would not have made the Beneficiary an executive; it would have made him the 
first-line supervisor of two multi-tasking employees. 
The Petitioner has not provided enough information to show that, even with only two non­
managerial subordinates, the Beneficiary's duties were primarily those of an executive at the time of 
filing. The Petitioner cites the Beneficiary's hiring authority, but hiring authority is managerial 
rather than executive. See section IOI(a)(44)(A)(iii) of the Act. An executive directs the 
management of a company, rather than manages it personally. Even then, the Petitioner did not hire 
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Mauer of H-. LLC 
or fire any employees for more than a year before the filing date, and therefore those responsibilities 
made no demonstrable demands on the Beneficiary's time on the tiling date and during the period 
leading up to it. 
We acknowledge the Beneticiary's authority to handle contractual and tinancial matters on the 
Petitioner's behalf as well as handle other matters such as applying for permits. But the Petitioner 
has not shown that the Beneficiary spent signiticant time on these duties. 
Based on the deticiencies discussed above, the Petitioner has not established that it seeks to employ 
the Beneficiary in a primarily executive capacity under the extended petition. 
III. CONCLUSION 
The Petitioner did not show that the Beneticiary served in an executive capacity at the time of filing. 
Therefore, the Petitioner did not establish eligibility for extension of the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of H-. LLC, ID# 1201513 (AAO Apr. 26, 2018) 
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