dismissed L-1A Case: Flooring Retail

·u.s. Citizenship 
and Immigration 
Services 
MATTER OF E-F-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 20, 2018 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a retailer of bamboo and hardwood flooring products, seeks to continue the 
Beneficiary's employment as its president and chief operating officer ("COO") under the L-1 A 
nonimmigrant classification for intracompany transferees.
1 
See Immigration and Nationality Act (the 
Act) section 101(a)(15)(L), 8 U.S.C. § ll01(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 concluding that the Petitioner did 
not establish, as required, that the Beneficiary would be employed in a managerial or executive 
capacity under an extended petition. 
On appeal, the Petitioner contends that the Director misconstrued the facts and misapplied the law, 
pointing to its trend of "positive financial growth" and asserting that the two department managers­
the Benet1ciary's direct reports- are professional employees. 
Upon de novo review, we find that the Petitioner has not overcome the basis for denial. Therefore, 
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 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. 
§ 214.2(1)(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. !d. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved for the period 
November 8, 2016, until August 31,2017. 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)(l)(ii)(F). The 
regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new oftice" operation one year within the date of approval of the 
petition to support an executive or managerial position. 
Matter of E-F-, LLC 
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 financial4 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. MANAGERIAL OR EXECUTIVE CAPACITY IN THE UNITED STATES 
The Petitioner originally claimed that the Beneficiary would be employed in an executive c<tpacity. 
However, on appeal the Petitioner claims that the Beneficiary will be employed as an executive and 
as a function manager. We will address each claim in the discussion below. 
A. Executive Capacity 
First, we will address the Petitioner's original claim that the Beneficiary will be employed 111 an 
executive capacity under the extended petition. 
"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 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 review 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 an executive 
capacity. 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. 
1. Staffing 
If staffing levels are used as a factor in determining whether an individual is acting in an 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. 
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Matter of E-F-, LLC 
In the present matter, the Petitioner claimed five employees , including the Beneficiar y, at the tim e 
. this petition was filed. In support of the petition, the Peti tio ner provided an organiz ational chart 
depicting the Beneficiary as president at the top of the organization; the chart does not indicate that 
the Beneficiary wo uld also assume the position of COO, as originall y ind icated in the petition. 
Rather, the chart shows that the positi on of COO is o ne of three positi ons that w ill be directly 
subordinate to the Benefici ary and names a differ ent individual - - as the COO . 
Th erefore, the chart and the petition are at odds with one another in term s o f the Ben eficiary' s 
proposed role and the role of one of his direc t subor dinate s. The Petiti oner must resolve this 
inconsistency in the record with indep endent, objective ev idence pointin g to where the truth lies. 
Matter of Ho , 191&N De c. 582,591-92 (BIA 1988). 
The chart also shows that the Benefici ary will have two other subordinates - a boo kkeepe r and a 
vice president o f sales and mark eting - and indi~ate s that the v ice president of sales and marketing 
will oversee two inside sales employees. We note , howe ver, that the two inside sales employees are 
the same empl oyees who ass ume the positions of bookkeep er and COO , respec tively, thereby 
indicating that two of the Petitioner's employees assume two differe nt roles within the organization 
making them subordinate to the Beneficiary in their respectiv e capacities as bookkeeper and COO, 
whil e being subordinate to the vice president of sales and marketing in their res pective roles as 
insid e sales employees. The chart also contains undefined num eric descrip tors next to the name s of 
the two employ ees that are depicted in these dual roles; both employ ees have the desc riptor ". 50 
FTE" below each of their respective posit ion titles. Lastly, the char t shows four commission-b ased 
inside sales represe ntati ves at the bottom of the hiera rchy wit h each in-h ouse . sale s emplo yee 
overseeing two of the commis sion-based sa les representatives. 
Supporting evid ence also included two em ployment agreements that were executed prior to the filing 
of the petition . One agreement nam es as the Petit ioner' s prospective employee and 
indicates that he/she will assume the position of " Inside Sales and Financi al Administration"; the 
other agreem ent names in the position of " Inside Sales" and make s no menti on o f her 
alleged role as the Petition er's COO. Each employm ent agr eement lists the respective empl oyee's 
job duties and indicates that both employees will receive the same mon thly salary of $2000 per 
month. We note that neither pos ition title nor her list of job duties corrob ora tes the 
organizational ·chart's depiction of her in a dual role as the Petiti oner 's COO and insider sales 
represe ntative . This additional inconsi stency regarding the role(s) of one of the Beneficiary's 
claim ed subordin ates must also be resolved through the submi ssion of indepe ndent , objective 
evidence. /d. 
In a request for evidence (RFE), the Oirecto~ informed the Petitioner that the reco rd did not 
adequately establish that the Beneficiary would be employed in a manageri al or exe cuti ve capacity 
and instructed the Petitione r to provide further e~idence to show that the Benef iciary meets the four­
prong statutory criteri a of either a manager or an executive. 
( 
In response, the Petitioner provided a statement claiming that it cu rren tly empl oys se ven people- the 
Beneficiary , two full-time employees , and four commission-based sa les people. The Petition er 
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Matter ofE-F-, LLC 
identified as both a COO and an insid e sales consultan t and provided a job du ty 
break down for eac h position, indicating that she spends 80% of her time perfor ming the dutie s of a 
COO and the remaining 20% performing the duties of a sales consultant. As noted earlier, the claim 
that ass umes a dual role within the Petitioner's org anization is inconsistent with her 
emp loyment agreement , which expressly sta tes that she was hire d t o till the position o f " Inside 
Sales," which requires her to provide customer service , know the Petitioner's product s, deve lop sales 
proc esses and procedures, create a customer databa se, and perform "other" unspecified duties that 
"may arise from time to time ." Although there is some overl ap between these five duti es and the 
four duties that comprise the inside sales consultant job duty breakdown , the two lis ts are somewhat 
inconsistent in that the latest four duti es do not req uire the sales consultan t to create a cust omer 
database, as indicated in the employm ent agree; also , the employmen t agreem ent did not requi re the 
sa les consult ant to "[d]evel op brand awareness" as indicated in the latest job description. As noted 
earlier, the Petitioner be ars the burden of resolvin g these incongruities through the submi ss ion of 
independent, objective evidence. Jd. 
As with RFE job description , RFE job desc ription indic ates that his/her time 
will also involv e dual roles - the role of financial ad ministrato r, wh ich is claimed to consume 80% 
of his/her time a nd includes five job dutie s/ and the role of an inside sa les represe ntati ve, wh ich i s . 
claimed to consume the remaining 20% of his/her time and incl udes two duti es. Despite these 
sepa rate job duty breakdowns that distinguish· between two roles, the emp loyment 
agreement does not make a s imilar distinctio n and lists a total of only the following five job duties: 
customer service, knowing the Petition er's produ cts, develop ing a syste m to track sales and 
inventory, creating monthl y and quart erly financ~al reports, and "other" unspecil"ied du ties that "ma y 
arise from time to time." 
The Petitione r also provid ed an updated organization al chart , which shows that the posi tion of vice 
president of sa les and mark eti ng is now vaca nt; the chart also con tains differen t num eric descriptors 
next to each of and positio n titles. The numer ic descriptor is 
assigned to the bookkeeper and COO position titles, respectiv ely, while -is assigned to 
eac h of the "Inside Sales" pos itions. 
Lastly, the Petitioner provid ed variou s payro ll . documents , including empl oyee earning s records, 
pay roll summ aries, and payroll journ als for time periods leadin g up to the filing of this pet ition. 
However, it did not provid e ev idence to show that it employed or retained the co ntracted ser vices of 
anyo ne beyond the three full-time employees , which include the Benef iciary, and 
As such, the record does not estab lish that the Petition er had five empl oyees at the time of 
filing, as claimed in the peti tion. 
In the denial decision, the Directo r point ed to the now vacant posi tion of vice president of sales and 
marketing , noting that payroll reco rds for the individual who occ upied this pos ition did not go 
2 Although the RFE job description lists six job duties as part of the accounting and administrative role, one of the job 
duties was listed twice, thereby indicating that a total of five job duties were attributed to this role. 
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Matter of E-F-, LLC 
beyond May 2017, which is two months prior to the filing of this pet1!lon. The Director also 
observed the dual roles that were assigned to two of the Petitioner's employees and interpreted the 
numeric indicators as representing percentages of time that each employee allocates to each of 
his/her roles. We find that there is no basis upon which to either affirm or disagree with this 
interpretation of the numeric indicators, as the Petitioner did not define or establish the significance 
of these qualifiers in any of its submissions. In any event, the Director pointed out that the Petitioner 
did not consistently list the same numeric indicators in its two organizational charts, noting that in 
the first chart each employee split time evenly between his/her respective roles, while in the second 
chart each employee was shown as allocating considerably more time to one role over the other so 
that a considerably higher portion of time was assigned to the role that corresponded to a higher 
level position within the organization than to each employee's sales-based position. The Director 
concluded that the Petitioner's organizational structure was not sufficient to support the Beneficiary 
in an executive position and further noted that the Beneficiary's proposed employment would not 
involve primarily overseeing a professional, managerial, or supervisory staff. 
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 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. 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.· 
Here, the evidence is not persuasive in demonstrating that the Petitioner has attained a level of 
organizational complexity to elevate the Beneficiary to an executive position where he would direct 
the managemenl of the organization and focus on the organization's goals and policies. There is 
insufficient evidence to show that the Petitioner has the necessary support staff to relieve the 
Beneficiary from having to engage in the non-executive operational tasks of the organization. 
Although the Petitioner claimed five employees at Part 5, No. 14 of the petition, the record contains 
evidence of only three in-house employees; the only evidence that the Petitioner had five employees 
is a company-generated quarterly report for the :2017 second quarter. However, as this petiiion was 
filed during the third quarter of 2017, the 2017 second quarter! y wage report does not pertain to the 
relevant time period and cannot be used to verify the Petitioner's claim. The record also shows that 
the Petitioner paid $185 in commission to one contracted sales representative in July 2017, when the 
petition was filed. Although the Petitioner's September bank statement contains copies of 
commission checks issued to three other commission-based sales representatives, the commissions 
were earned in August 2017, after the petition was filed, and amounted to only $268 per sales 
person; the low commission earned by the contracted sales representatives indicates that they 
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Matter of E-F-, LLC 
worked few hours and did not assume a primary role in the Petitioner's sales efforts. Rather, it 
appears that the Petitioner's in-house employees primarily assumed the sales role at the time of 
filing. 
On appeal, the Petitioner correct! y observes that we must take into account the reasonable needs of 
the organization and that a company's size alone may not be the only factor in determ'ining whether 
the Beneficiary is or would be employed in a managerial or executive capacity. See section 
101(a)(44)(C) of the Act. However, it is appropriate for us 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 or a company that does not 
conduct business in a regular and continuous manner. Family Inc. v. USC IS, 469 F.3d 1313 (9th Cir. 
2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be 
especially relevant when discrepancies in the record are noted, as was the case in this matter. See 
Systronics, 153 F. Supp. 2d at 15. 
The Petitioner also points out that it is currently only in its second year of operation and contends 
that the Director did not consider its early phase in its development when denying the petition. We 
find, however, that the Petitioner disproportionately relies on its underdeveloped organizational 
hierarchy without providing sufficient evidence to demonstrate that its level of organizational 
complexity at the time of filing was sufficient to relieve the Beneficiary from having to primarily 
engage in the Petitioner's operational and administrative tasks. While we agree that the Petitioner's 
reasonable needs are relevant to this discussion, the Petitioner was no loriger a "new otlice" at the 
time this petition was filed. See 8 C.F.R. § 214.2(1)(3)(v)(C). Thus, if the Petitioner cannot establish 
that it has the necessary staffing beyond the new office phase to sufficiently relieve the Beneficiary 
from performing operational and administrative tasks, it would be deemed ineligible for an 
extension. Moreover, the Petitioner's reasonable needs will not supersede the requirement that the 
Beneficiary must be "primarily" employed in an executive capacity, spending the majority of his 
time on executive duties. See sections 101(a)(44)(B) of the Act. In the present matter, the Petitioner 
has not established that a two-person support staff was sufficient to support the Beneficiary 1n an 
executive capacity at the time of filing. 
2. Duties 
In the L Classification Supplement, the Petitioner stated that the Beneficiary's proposed employment 
will include the following: developing the U.S. inarket, supervising the Petitioner's supervisors and 
managers, setting the company's sales and ope\-ational goals, making hiring and tiring and other 
personnel decisions, exercising discretion over oaily operations, communicating with shareholders 
and executives of the foreign parent entity, resolving issues regarding quality and customer relations, 
and providing guidance and training to all employees. 
In the RFE response, the Petitioner stated that the Beneficiary will make "executive decisions" 
pertaining to personnel, sales, marketing, client relations, vendor selection, research and product 
development, and customer service. The Petitioner also provided a job duty breakdown, stating that 
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Matter of E-F-, LLC 
the Beneficiary's time would be distributed among the following duties: 30% directing and 
supervising supervisory personnel; 20% reviewing company performance and setting sales and 
operation goals; 20% developing new business and communicating with clients, retailers, and 
vendors; 15% developing marketing and analyzing product trends; and 15% making personnel 
decisions and engaging in "other supervising and directing duties." 
The Petitioner also addressed the four prongs of the definition of executive capacity, stating that the 
Beneficiary will meet the first prong- directing the management of the organization- by personally 
supervising the management staff, holding meetings to discuss key issues, such as company 
operations, sales, marketing, customer service, and finance, and by making himself available to 
address management's questions and concerns. The Petitioner stated that the Beneficiary would 
meet the second prong - establishing its goals and policies - by reviewing the company's 
performance, using his experience to determine areas that need improvement, talking to clients and 
business partners, and soliciting recommendations from management and independent contractors on 
how to improve the business operation and increase sales and customer satisfaction. Next, the 
Petitioner addressed the third prong- exercising wide latitude in discretionary decision-making- by 
reiterating the Beneficiary's role as an evaluator of company performance and stating that the 
Beneficiary would research market trends, studY, customer preferences, select products, set pricing, 
make presentations to retails, and personnel decisions. Finally, the Petitioner stated that the 
Beneficiary will receive only general supervision from higher level executives, thereby satisfying the 
fourth prong of the definition; the Petitioner· added that the Beneficiary will exercise "broad 
executive power," by supervising and controlling matters with regard to the company's personnel, 
sales and marketing, client relations, vendor selection, and product development. 
In the denial decision, the Director determined that the Beneficiary would not primarily perform 
executive-level duties. We agree with the Director's decision and find that the Petitioner did not 
provide a job description that conveys detailed and realistic information about the 'Beneficiary's 
proposed job duties within the scope of the operation as it existed at the time of filing. First, the 
claim that the Beneficiary would allocate 30% of his time to overseeing "supervisory personnel" is 
unrealistic, as neither of the Beneficiary's subordinates possessed a supervisory or managerial 
position at the time of filing based on the job duties listed in their respective employment agreements 
or based on the Petitioner's staffing at the time of filing. As noted above, the record indicates that 
the Petitioner retained the help of commission-based sales representatives - four at most - who 
worked a limited schedule, as indicated by the low amount of commissions they were paid. Aside 
from these sales representatives, the Beneticiary's subordinates had no one else to supervise or 
manage and thus the Petitioner did not have a sufficient staff of "supervisory personnel" to justify 
allocating 30% of the Beneficiary's time to "supervising a supervisory personnel." Likewise, the 
Petitioner did not describe the types of "personnel decisions" or "other supervisory and directing 
duties" the Beneficiary would carry out within the scope of its operation. Lastly, the Petitioner did 
not establish that communicating with clients and vendors or developing marketing and analyzing 
product trends are executive-level job duties. 
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Matter of E-F-, LLC 
While the Beneficiary is not required to allocate 100% of his time to executive-level tasks, the 
Petitioner must establish that the non-qualifying tasks the beneficiary would perform are only 
incidental to the proposed position. An employee who "primarily" performs the tasks necessary to 
produce a product or to provide services is not considered to be "primarily" employed in an 
executive capacity. See, e.g., sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); Matter of Church Scientology 
Jnt'l, 19l&N Dec. 593,604 (Comm'r 1988). 
Here, the Petitioner broadly relied on the Beneficiary's key role in overseeing the company's 
business activities and making personnel and business decisions to establish that he would be 
employed in an executive capacity. However, the fact that the Beneficiary will manage or direct the 
Petitioner's organization does not necessarily establish that he would be employed in an executive 
capacity within the meaning of section 101(a)(44)(B) of the Act. 
On appeal, the Petitioner argues that a similar job description was submitted in support of the 
previously filed new office petition, which was approved without the issuance of an RFE. We note, 
however, that the regulatory requirements that apply to a new office petition vary greatly from those 
that apply a new office extension petition. Most notably, when a new business is established and 
commences operations, the regulations recognize that a designated executive responsible for setting 
up operations will be engaged in a variety of activities that are not normally performed by employees 
at the executive level and that often the full range of executive responsibility cannot be performed. 
However, the regulations do not allow for an extension of this initial new office period during which 
it is acceptable for a beneficiary to carry out primarily non-executive tasks. See 8 C.F.R. 
§ 214.2(1)(3)(v)(C). The fact that the Petitioner offered the same job description to support a new 
office petition and the instant extension petition further supports our finding that the Petitioner has 
not adequately progressed to the next phase of its development and that the Petitioner's 
organizational needs cannot reasonably be met it: the Beneficiary's time is devoted primarily to tasks 
of an executive nature. · 
B. Managerial Capacity 
Finally, although not previously claimed, on appeal the Petitioner asserts that the Beneficiary 
qualifies a function manager. 
"Managerial capacity" means an assignment within an organization in which the 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, or a department or subdivision of the 
organization; has authority over 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 
101(a)(44)(A) of the Act. 
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Matter of E-F-, LLC 
The term "function manager" applies generally when a beneficiary will be primarily responsible for 
managing an "essential function" within the organization. See section 10l(a)(44)(A)(ii) of the 
Act. If a petitioner claims that a beneficiary will manage an essential function, it must clearly 
describe the duties to be performed in managing the essential function. In addition, the petitioner 
must demonstrate that "(I) the function ·is a clearly defined activity; (2) the function is 'essential,' 
i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the 
function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with 
respect to the function managed; and (5) the beneficiary will exercise discretion over the function's 
day-to-day operations." Matter ofG-Inc., 0dopied Decision 2017-05 (AAO Nov. 8, 2017). 
Although the Petitioner points to the Beneficiary's top-most placement within the organization and 
the discretionary authority he has over its personnel and business matters, these elements do not 
establish that the Beneficiary will assume the role of a function, manager, as the Petitioner has not 
articulated the essential function that the Beneficiary will manage, nor has it established that the 
Beneficiary will manage, as opposed to perform, the underlying duties of that function. Therefore, 
the Petitioner has not established that the Beneficiary will be employed in a managerial capacity 
under an approved petition. 
III. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that the Beneficiary 
will be employed in the United States in a managerial capacity or executive capacity under an 
extended petition. The appeal will be dismissed for this reason. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-F-, LLC, ID# 1292123 (AAO June 20, 2018) 
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